id
int64 1
1.1k
| input_prefix
stringlengths 5
151
⌀ | input
stringlengths 910
884k
| output
stringlengths 17
3.02k
|
|---|---|---|---|
211 | Access to a lawyer | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Cautions B. Safety interviews 1. The Terrorism Act 2000 2. The relevant provisions of Code C C. The admissibility of evidence D. The reopening of criminal proceedings III. RELEVANT EUROPEAN UNION AND INTERNATIONAL LEGAL MATERIALS A. European Union law 1. The right to be informed 2. The right of access to a lawyer 3. Privilege against self-incrimination and right to silence B. International law 1. The International Covenant on Civil and Political Rights (“ICCPR”) 2. International criminal tribunals IV. RELEVANT COMPARATIVE LEGAL MATERIALS A. Council of Europe States B. The United States C. Canada THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION A. The Chamber ’ s conclusions B. The parties ’ submissions to the Grand Chamber 1. The applicants 2. The Government 3. The third party intervener C. The Court ’ s assessment 1. General principles 2. The application of the general principles to the facts of the case II. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage B. Costs and expenses C. Default interest | The Court held that there had been no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance) of the Convention in respect of the three first applicants and that there had been a breach of those provisions in respect of the fourth applicant. In respect of the three first applicants the Court was convinced that, at the time of their initial police questioning, there had been an urgent need to avert serious adverse consequences for the life and physical integrity of the public, namely further suicide attacks. There had therefore been compelling reasons for the temporary restrictions on their right to legal advice. The Court was also satisfied that the proceedings as a whole in respect of each of the first three applicants had been fair. The position with regard to the fourth applicant, who also complained about the delay in access to a lawyer, was different. He was initially interviewed as a witness, and therefore without legal advice. However, it emerged during questioning that he had assisted a fourth bomber following the failed attack. At that point, according to the applicable code of practice, he should have been cautioned and offered legal advice. However, this was not done. After he had made a written witness statement, he was arrested, charged with, and subsequently convicted of, assisting the fourth bomber and failing to disclose information after the attacks. In his case, the Court was not convinced that there had been compelling reasons for restricting his access to legal advice and for failing to inform him of his right to remain silent. It was significant that there was no basis in domestic law for the police to choose not to caution him at the point at which he had started to incriminate himself. The consequence was that he had been misled as to his procedural rights. Further, the police decision could not subsequently be reviewed as it had not been recorded and no evidence had been heard as to the reasons behind it. As there were no compelling reasons, it fell to the UK Government to show that the proceedings were nonetheless fair. In the Court’s view they were unable to do this and it accordingly concluded that the overall fairness of the fourth applicant’s trial had been prejudiced by the decision not to caution him and to restrict his access to legal advice. |
529 | Conditions of reception | THE LAW 32. In her observations before the Grand Chamber the applicants ’ representative informed the Court that she had maintained contact with the applicants almost until the end of the proceedings before the Chamber but had not had any further contact with them since then. At the hearing on 25 May 2016 she confirmed that, despite several attempts on her part, she had been unable to renew contact with the applicants and that she did not know their current address. She submitted that the Court should nonetheless continue its examination of the application and argued that she had been authorised to represent the applicants throughout the entire proceedings. The representative pointed out that it was always difficult to maintain contact with persons in a precarious situation such as that of the applicants and that the referral of the case to the Grand Chamber at the Government ’ s initiative could not justifiably have the effect of depriving the applicants of the benefit of the judgment of the Chamber, which had ruled in their favour. 33. The Government did not expressly comment on the question of continuing the examination of the case by the Court. They observed, however, that on account of the loss of contact with their lawyer the applicants had not been in a position to submit observations on the new evidence produced before the Grand Chamber which showed, in the Government ’ s view, that the applicants had not gone to the Bovigny reception centre (see paragraph 27 above). 34. Having regard to these circumstances, the Court considers it necessary first to examine the need to continue the examination of the application according to the criteria set forth in Article 37 of the Convention. This provision reads as follows: “1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. 2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.” 35. The Court reiterates that an applicant ’ s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant ’ s particular situation and to confirm the applicant ’ s continuing interest in pursuing the examination of his or her application (see Sharifi and Others v. Italy and Greece, no. 16643/09, § 124, 21 October 2014, and, mutatis mutandis, Ali v. Switzerland, 5 August 1998, § 32, Reports of Judgments and Decisions 1998 ‑ V). 36. In the present case the Court observes that the applicants did not maintain contact with their lawyer and failed to keep her informed of their place of residence or to provide her with another means of contacting them. Accordingly, it considers that it can conclude on that basis that the applicants have lost interest in the proceedings and no longer intend to pursue the application, within the meaning of Article 37 § 1 (a) of the Convention (see Ibrahim Hayd v. the Netherlands (dec.), no. 30880/10, § 10, 29 November 2011; Kadzoev v. Bulgaria (dec.), no. 56437/07, § 7, 1 October 2013; M.H. and Others v. Cyprus (dec.), no. 41744/10, § 14, 14 January 2014; and M.Is. v. Cyprus (dec.), no. 41805/10, § 20, 10 February 2015). 37. Whilst it is true that the applicants ’ representative has power to represent them throughout the entire proceedings before the Court, that power does not by itself justify pursuing the examination of the case ( see Ali, cited above, § 32, and Ramzy v. the Netherlands (striking out), no. 25424/05, § 64, 20 July 2010 ). It would appear in the present case that the last time the applicants and their lawyer were in contact was on a date prior to the judgment given by the Chamber on 7 July 2015 and that the applicants are unaware of that judgment and of the referral of the case to the Grand Chamber. In the circumstances the Court considers that the applicants ’ representative cannot now meaningfully pursue the proceedings before it, in the absence of instructions from her clients, particularly regarding the factual questions raised by the new documents produced by the Government (see Ali, § 32; Ramzy, § 64; and M.H. and Others, § 14, all cited above). 38. Regarding the submission by the applicants ’ representative that this situation has arisen as a result of their precarious living conditions in Serbia, the Court observes that the applicants returned to their country of their own volition and that their departure from Belgium does not appear to have resulted in the loss of contact with their lawyer. She affirms that she maintained contact with them throughout the proceedings before the Chamber. In the present case the loss of contact was not therefore a consequence of any act of the respondent Government (see, conversely, Diallo v. the Czech Republic, no. 20493/07, §§ 44-47, 23 June 2011). Nor is there anything to suggest that the precarious conditions in which the applicants lived in Serbia were such as to prevent them from maintaining some form of contact with their lawyer, if necessary through a third party, for such a long period (see Sharifi and Others, cited above, §§ 131-32, and M.H. and Others, cited above, § 14 ). 39. The Court also takes note of the concern expressed by the applicants ’ representative that in the event that the case were struck out of the list by the Grand Chamber the applicants would lose the benefit of the judgment delivered by the Chamber. It does indeed appear from the relevant provisions of the Convention that where a request for referral has been accepted by the panel of the Grand Chamber the judgment of the Chamber does not become final (Article 44 § 2 of the Convention, a contrario ) and thus produces no legal effect. The judgment of the Chamber will be set aside in order to be replaced by the new judgment of the Grand Chamber delivered pursuant to Article 43 § 3 (see K. and T. v. Finland [GC], no. 25702/94, § 140, ECHR 2001 ‑ VII) with which the parties are obliged to comply in accordance with Article 46 § 1. Such a situation, which, in the instant case, would be prejudicial to the applicants is, however, the consequence of their lack of contact with their lawyer and not of the Government ’ s use of the possibility, provided for in Article 43 § 1 of the Convention, of requesting that the case be referred to the Grand Chamber. The Court would observe, moreover, that if the circumstances justify such a course the applicants can request that the application be restored to the list of cases under Article 37 § 2 of the Convention. 40. Having regard to the foregoing and in accordance with Article 37 § 1 (a) of the Convention, the Court has to conclude that the applicants do not intend to pursue their application. It also considers that no particular circumstance relating to respect for the rights guaranteed by the Convention or its Protocols requires it to continue the examination of the application pursuant to Article 37 § 1 in fine. 41. Accordingly, the case should be struck out of the list. | The Grand Chamber held that the application should be struck out of the Court’s list of cases pursuant to Article 37 (striking out applications) of the Convention. It found in particular that the applicants, who had returned to Serbia of their own volition, had not maintained contact with their lawyer. They had failed to keep her informed of their place of residence or to provide her with any other means of contacting them. There was however nothing to suggest that the precarious conditions in which the applicants had lived in Serbia had been such as to prevent them from maintaining some form of contact with their lawyer, if necessary through a third party, for such a long period. The Grand Chamber therefore considered that it could be concluded that the applicants had lost interest in the proceedings and no longer intended to pursue the application. |
260 | Death penalty as a result of unfair trial | THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON GROUNDS OF CONDITIONS OF DETENTION 79. The applicant submitted that his conditions of detention on İmralı Island were inhuman and exceeded the severity threshold deriving from Article 3 of the Convention. He also alleged a violation of Articles 5, 6, 8, 13 and 14 of the Convention, on the grounds of the social isolation imposed on him during his detention in İmralı Prison. The Court considers these complaints primarily under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” ... B. Merits 1. The parties ’ submissions ( a ) The applicant 81. The applicant pointed out that he had been the only inmate of İmralı Prison for ten years ten months, up until 17 November 2009, when five other prisoners had been transferred. Following this transfer his situation had not greatly improved : the time granted to prisoners for collective activities was extremely limited, especially as compared with the regime normally applied in the other high- security prisons. The applicant added that his social isolation had been further exacerbated by several prohibitions which were not applied to other convicted persons in Turkey, namely deprivation of a television set and any kind of telephone communication, strict censorship of his correspondence with the outside, and restrictions on access to outdoor exercise. Furthermore, the failure to improve the marine transport conditions was a physical obstacle to visits by his lawyers and family members, and to his access to daily newspapers and books. 82. The applicant also submitted that his state of health was rapidly deteriorating (breathing problems, permanent difficulties in the upper respiratory tracts, unidentified skin allergy, and so on), and asserted that he felt humiliated and degraded by all the said conditions of detention. 83. The applicant took the view that the Government had rejected most of the proposals presented by the CPT and the Human Rights Commission of the Turkish National Assembly geared to reducing the negative effects of his social isolation. ( b ) The Government 84. The Government contested that argument. They first of all observed that the applicant had made no allegation of ill- treatment by prison staff. 85. The Government referred to the conclusions presented by the CPT following its January 2010 visit to the effect that the material conditions in the cell and the building in which the applicant was detained were in conformity with the highest international standards in matters of detention. They explained that following the comments from the CPT on the quantity of daylight entering the applicant ’ s cell, a team made up of architects and an ophthalmologist had visited the premises and noted that the cell had sufficient exposure to daylight, making it possible to read and work without any problem during the daytime, without the use of artificial light. 86. Moreover, the Government submitted that when the applicant was not subject to a disciplinary sanction, he had thirty-six and a half hours per week of activities outside his cell, including eight and a half in the company of the other prisoners. When he was subject to a disciplinary sanction – consisting of confinement to his cell – the applicant was allowed two hours per day of out-of-cell activities. 87. The Government also observed that the system of healthcare for the applicant had been completely reorganised in accordance with the CPT ’ s recommendations. 88. The Government asserted that the refusal to allow the applicant to have a television set in his cell or to make telephone calls was due to the recurrent disciplinary offences which he had committed and the resultant sanctions, as well as the danger which he posed; they referred in this regard to section 4 of Law no. 5275 on the enforcement of sentences and preventive measures. 89. The Government drew attention to the fact that neither the applicant nor his lawyers had appealed against the disciplinary sanctions imposed. They submitted that the national authorities had welcomed the CPT ’ s suggestions and had taken all the necessary steps to apply the optimum international standards of detention to the applicant. They quoted the examples of the transfer of five more prisoners to İmralı, the possibility of engaging in collective activities, the introduction of “around the table” visits, the replacement of visits cancelled owing to poor weather conditions, and the twice-weekly deliveries of newspapers arriving every day. 90. The Government affirmed that the law enabled prison authorities to prevent prisoners from sending or receiving mail which jeopardised law and order and prison security or which facilitated communication with other members of a terrorist organisation. 91. They reiterated in this connection that the applicant had been sentenced to life imprisonment for running an organisation whose attacks had killed and maimed thousands of people and jeopardised the peace and safety of the population. Following the applicant ’ s incarceration, the PKK had continued its armed attacks and terrorist activities. There was reliable evidence that the applicant had been transmitting instructions to members of his organisation, who in fact still considered him as their leader, through the intermediary of the lawyers who visited him every week for the needs of his applications to the Court. The Government pointed out that because of such acts the applicant had been the subject of disciplinary proceedings, leading to disciplinary sanctions preventing him from having a television set and using the telephone; however, those sanctions had apparently not had the required deterrent effect and the applicant had persisted in this behaviour. They asserted that when some of the lawyers had been banned from visiting the applicant because of the transmission of messages to the PKK, some of the new lawyers replacing them had continued to act as messengers between the applicant and his armed organisation. The Government submitted that if the applicant complied with the prison regulations, no further disciplinary sanctions would be imposed on him and he would benefit from the facilities of communication with the outside world as authorised by law. 92. The Government affirmed that telephone calls had been technically possible for İmralı inmates since 20 March 2010 and that the applicant could telephone for ten minutes every fortnight. 2. The Court ’ s assessment ( a) Period of detention to be taken into consideration 93. The Court must first of all determine the period of detention to be taken into consideration in assessing the conformity of the conditions of detention with the requirements of Article 3. 94. It firstly reiterates that within the compass delimited by the decision on the admissibility of the application, the Court may deal with any issue of fact or law that arises during the proceedings before it ( see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I; Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996-V; and Ahmed v. Austria, 17 December 1996, § 43, Reports 1996-VI). 95. The Court secondly reiterates that it considered the conformity with Article 3 of the applicant ’ s conditions of detention from the outset until 12 May 2005 in its judgment of the same date ( see Öcalan, cited above, §§ 192 ‑ 196), when it reached the following conclusion: “While concurring with the CPT ’ s recommendations that the long- term effects of the applicant ’ s relative social isolation should be attenuated by giving him access to the same facilities as other high security prisoners in Turkey, such as television and telephone contact with his family, the Grand Chamber agrees with the Chamber that the general conditions in which he is being detained at İmralı Prison have not thus far reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. Consequently, there has been no violation of that provision on that account. ” 96. In the present judgment, the Court can only hear and determine the facts which have occurred since its judgment of 12 May 2005 ( application no. 46221/99), up to 8 March 2012 ( the date of the latest observations received ). It will, however, take into account the applicant ’ s situation on 12 May 2005, particularly with regard to the long- term effects of his particular conditions of detention. ( b) General principles 97. The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ( see El Masri v. “ the Former Yugoslav Republic of Macedonia ” [GC], no. 39630/09, § 195, ECHR 2012; Ramirez Sanchez v. France [GC], no. 59450/00, § 115, ECHR 2006 ‑ IX; and Chahal, cited above, § 79). 98. In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation ( see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). The nature of the offence with which the applicant is charged is therefore irrelevant to the assessment under Article 3 ( see Ramirez Sanchez, cited above, § 116, and Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001). 99. In order to fall within the scope of Article 3, ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, including the duration of the treatment and its physical or mental effects, and also, in some cases, on the sex, age and state of health of the victim, and so on (see, for example, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). Moreover, to assess the evidence before it in establishing cases of treatment contrary to Article 3, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account (ibid, § 161). 100. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has also deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them ( see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 ( see, for example, Raninen v. Finland, 16 December 1997, § 55, Reports 1997 ‑ VIII). However, the absence of any such object or purpose cannot conclusively rule out a finding of a violation of Article 3 ( see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and Van der Ven v. the Netherlands, no. 50901/99, § 48, ECHR 2003 ‑ II). 101. In order for a punishment or the treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment ( see, for example, V. v. the United Kingdom, cited above, § 71; Indelicato, cited above, § 32; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004-VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003). 102. In this regard, it should be pointed out that measures depriving a person of his liberty are usually accompanied by such suffering and humiliation. Nevertheless, Article 3 requires the State to ensure that all prisoners are detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured ( see Kudła, cited above, §§ 92-94, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI). The Court adds that the measures taken must also be necessary to attain the legitimate aim pursued ( see Ramirez Sanchez, cited above, § 119). 103. Furthermore, when assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant ( see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001 ‑ II). 104. One of the main elements of the applicant ’ s allegations in the present case is the length of time he spent in relative social isolation. On that specific point the Court reiterates that a prisoner ’ s segregation from the prison community does not in itself amount to inhuman treatment. In many States Parties to the Convention more stringent security measures exist for dangerous prisoners. These arrangements, which are intended to prevent the risk of escape, attack, disturbance of the prison community or contact with those involved in organised crime, are based on separation of the prison community together with tighter controls ( see Ramirez Sanchez, cited above, § 138). 105. However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is further extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner ’ s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling as time passes. 106. Furthermore, such measures, which are a form of “imprisonment within the prison”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the Prison Rules adopted by the Committee of Ministers on 11 January 2006. A system of regular monitoring of the prisoner ’ s physical and mental condition should also be established in order to ensure that his condition is compatible with continued solitary confinement ( ibid., § 139). 107. The Court has already established the conditions under which solitary confinement of a prisoner – even if he is considered dangerous – constitutes inhuman or degrading treatment ( or indeed, under some circumstances, torture ), as follows : “ Complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment that cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment .” ( see, among other authorities, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999 ‑ V, and Öcalan, cited above, § 191, the two cases in which the Court concluded that there had been no treatment contrary to Article 3). Similarly, the Court found a violation of Article 3 of the Convention in the following conditions of detention : “ As regards the applicant ’ s conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 (see paragraph 289 above), in which it described isolation for so many years as indefensible. The applicant ’ s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment (see paragraphs 253, 258-60, 262-63 and 265 above) and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health. ” ( see Ilaşcu and Others, cited above, § 438; see also, for a finding of no violation of Article 3 in the case of different conditions of detention, Rohde v. Denmark, no. 69332/01, § 97, 21 July 2005 ). ( c) Application of these principles to the present case i. Specific nature of the case 108. As regards the present case, the Court observes that in its judgment of 12 May 2005 it found that the applicant ’ s detention posed exceptional difficulties for the Turkish authorities. As the head of a large armed separatist movement the applicant was considered by a large section of the Turkish population as the most dangerous terrorist in the country. This was compounded by all the differences of opinion that had come to light within his own movement, showing that his life was genuinely at risk. It was also a reasonable presumption that his supporters would seek to help him escape from prison. 109. The Court observes that those conditions have not radically changed since May 2005: the applicant has remained actively involved in the political debate in Turley regarding the PKK armed separatist movement, and his instructions as transmitted by his lawyers ( see § 43 above ) have been closely monitored by the general public, prompting a variety of reactions, some of which have been very extreme ( see § 45 above ). The Court therefore understands why the Turkish authorities found it necessary to take extraordinary security measures to detain the applicant. ii. Physical conditions of detention 110. The physical conditions of the applicant ’ s detention must be taken into account in assessing the nature and duration of his solitary confinement. 111. The Court observes that before 17 November 2009 the cell occupied alone by the applicant had an area of approximately 13 sq. m and contained a bed, a table, a chair and a bookshelf. It was air-conditioned and had a sanitary annex. It had a window overlooking an exercise yard and sufficient natural and artificial light. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp. 112. The Court also observes that since 17 November 2009 the applicant has been the sole occupant of a cell in the new İmralı Prison building, which was designed also to accommodate other prisoners. His new cell has an area of 9. 8 sq. m ( living space), with an additional 2 sq. m ( bathroom and toilets ), and comprises a bed, a small table, two chairs, a metal cupboard and a kitchenette with a wash basin. The building comprising the cells is properly damp-proofed. The applicant ’ s cell has a window measuring 1 m x 0. 5 m and a partly glazed door, both of which open on to an exercise yard. The Government, drawing on an expert report indicating that the cell receives enough natural light and on concerns about the applicant ’ s safety, would appear not to have accepted the CPT ’ s proposal to lower the wall. 113. The new building provides the applicant and the other inmates with a sports room equipped with a ping-pong table and two further rooms furnished with chairs and tables, all three of which rooms receive plentiful daylight. In the new building, up until the end of 2009 /beginning of 2010, the applicant enjoyed two hours of outdoor activities per day, remaining alone in the exercise yard adjacent to his cell. Furthermore, he was able to spend one hour per week alone in the recreation room (where no specific activities were on offer) and two hours per month alone in the prison library ( see paragraph 26 above ). 114. In response to the CPT ’ s observations after its January 2010 visit, the authorities responsible for İmralı Prison relaxed the relevant regulations. The applicant was accordingly authorised to engage alone in out-of-cell activities four hours per day. 115. The Court notes that the physical conditions of the applicant ’ s detention are in conformity with the European Prison Rules adopted by the Committee of Ministers on 11 January 2006. Furthermore, the CPT has also described them as “ broadly acceptable ”. Therefore, no infringement of Article 3 can be found on this account. iii. The nature of the applicant ’ s isolation – Access to information 116. Before 17 November 2009 the applicant ’ s cell contained books and a radio which only received State broadcasts. He was not allowed to have a television set in his cell on the ground that he was a dangerous prisoner and a member of an illegal organisation. For the same reasons he had no access to telephones. These restrictions increased the applicant ’ s relative social isolation. 117. Over the same period the applicant was subject to restrictions in his access to the daily and weekly press. In fact, he received newspapers once a week, provided by his family or lawyers. Sometimes, when there were no visits from his relatives or lawyers, he went for weeks on end without any access to the press. The newspapers delivered to the applicant were extensively censored. 118. After 17 November 2009 a number of improvements were made to these conditions. From 2010 onwards the applicant, like the other İmralı Prison inmates, received newspapers twice instead of once a week. Since March 2010 he has also been allowed ten minutes of telephone calls to the outside per fortnight. 119. All in all, the Court observes that the applicant has benefited from moderate access to information, and not all the means of communication have been available at the same time. Censorship of the daily papers delivered to the applicant would appear to be offset by uncensored access to books. Given that access to television is a means of mitigating the harmful effects of social isolation and since the inmates of the other high-security prisons benefit from such facilities without any major restrictions, the Court holds that the restriction imposed on the applicant until recently in this regard, without any convincing justification, was such as to increase his relative social isolation in the long term. – Communication with prison staff 120. In the light of the reports prepared by the CPT after its visits in 2007 and 2010 ( see links in paragraph 72 above, (CPT/Inf (2008)13 for the May 2007 visit, §§ 25-30, and CPT/Inf (2010) 20 for the January 2010 visit, §§ 30-35), the Court observes that for practically the whole duration of his first eleven years of detention the applicant received daily visits from GPs. A different doctor attended him each time, which the CPT says ruled out any constructive doctor/patient relationship. 121. From May 2010 onwards, following the CPT recommendations, the applicant received doctor ’ s visits either regularly once a month or at his request or as needed. A specific physician was charged with collating all medical data on the applicant ’ s health, assessing the data and ensuring respect for their medical secrecy. 122. The Court also notes that none of the medical certificates issued by the medical officers of the Ministry of Health and none of the CPT visit reports mentioned that the applicant ’ s relative social isolation could have major and permanent negative effects on the applicant ’ s health. It is true that after their visit in 2007 the CPT delegates reported a deterioration in the applicant ’ s mental state as compared with 2001 and 2003. According to the CPT delegates, this deterioration was the result of a state of chronic stress and social and affective isolation, combined with a feeling of abandonment and disillusionment, not forgetting a longstanding ENT problem. Following their visit to İmralı in 2010 after the construction of a new building and the transfer of other prisoners to İmralı Prison, the CPT delegates noted that the applicant ’ s mental state had considerably improved, although he was still slightly vulnerable, a condition which had to be monitored. 123. The Court further observes that the prison staff were authorised to communicate with the applicant, but that they had to restrict conversations to the strict minimum required for their work. Such contact is not in itself capable of lessening a prisoner ’ s social isolation. – Communication with the other inmates 124. Before 17 November 2009 the only contact which the applicant, as the only inmate of İmralı Prison, could have was with the staff working there, within the strict limits of their official duties. 125. After 17 November 2009, when the applicant and five other prisoners transferred to İmralı from different prisons were moved to the new building, the applicant was authorised to spend one hour per week conversing with the other inmates. 126. In response to the observations made by the CPT following its visit in January 2010, the authorities responsible for İmralı Prison relaxed the rules on communication between the applicant and the other prisoners. Since then the applicant has been allowed to spend three hours, rather than just one, per week with the other inmates for conversation. Moreover, like all the İmralı inmates, he can engage, on request, in the following five collective activities, at a rate of one hour per week for each of the five : painting and handicraft activities, table tennis, chess, volleyball and basketball. He can therefore engage in a total of five hours ’ collective activities per week. According to the prison registers, the applicant in fact only plays volleyball and basketball. In 2010 the prison authorities considered giving the applicant and the other prisoners two extra hours per week to engage in other collective activities. – Communication with family members 127. The Court observes that the applicant was visited by members of his family, particularly his sisters and his brother. 128. Even though the prison rules authorise a one-hour visit by close relatives ( brothers and sisters in the applicant ’ s case ) every fortnight, the visits did not take place as frequently as the applicant and his family would have wished. The fact that the applicant was incarcerated in a prison located on a remote island inevitably caused major problems of access for the family members as compared with high- security prisons on the mainland. The main reasons advanced by the governmental authorities to explain the frequent interruptions in the shuttle-boat services between the prison and the nearest coast highlight the difficulties: “ poor weather conditions ”, “ maintenance work on the ferry boats between the island and the mainland” and “the inability of the boats to cope with prevailing weather conditions ”. 129. Perusal of the dates and frequency of visits actually conducted by relatives and visits refused shows that in 2006 and early 2007 more visits were refused than actually effected. On the other hand, visits increased in frequency in late 2007 and in 2008, 2009 and 2010. In 2011 and 2012, however, the applicant received very few visits from his relatives. In this connection the Court notes with concern that very many visits were blocked by poor weather conditions and technical breakdowns in the shuttle boats, which sometimes necessitated several week ’ s work, despite the fact that the Government had informed the Court, in the case of Öcalan v. Turkey which led up to the Grand Chamber judgment of 12 May 2005, that such difficulties would be eliminated by the use of more suitable means of transport ( see Öcalan, cited above, § 194). 130. As to the conditions under which these visits are conducted, the Court observes that prior to 2010 the applicant could only communicate with his sisters and brother in visiting rooms equipped with a barrier ( consisting of glass panels and telephones ), because under the prison rules visiting rooms without barriers were reserved for first- degree relatives. This section of the prison rules having been deleted by the administrative courts in December 2009, the applicant and the members of his family who have visited him since 2010 have sat around a table. – Communication with lawyers and other persons 131. The Court observes that the applicant has been visited by his lawyers, sometimes at regular intervals and sometimes sporadically. While the applicant was entitled to see his lawyers once a week ( every Wednesday ), he was in fact deprived of most of these visits. The prison authorities adduced poor weather conditions or ferry breakdowns to explain refusals of visit requests. 132. The Court notes that the periods when the applicant was refused lawyer ’ s visits preceded the commencement of proceedings against some of the applicant ’ s lawyers, who had been accused of having acted as messengers between him and the PKK. It notes that the interruptions in visits were more due to the national authorities ’ concern to prevent communication between the applicant and his former armed organisation that to weather conditions or boat breakdowns. 133. The Court further observes that the applicant was entitled to correspond with the outside world under the supervision of the prison authorities, and that the mail which he received was inspected and censored. 134. It also notes that the applicant was not permitted to have confidential conversations with his lawyers. The records of these conversations were subject to supervision by the post-sentencing judge. 135. The Court concludes that, as a person incarcerated for terrorist activities, the communication between the applicant and his lawyers and his correspondence were subject to greater restrictions than those of persons held in other prisons. Nevertheless, while persons deprived of their liberty for terrorist activities cannot be excluded from the scope of the provisions of the Convention and the essence of their rights and freedoms recognised by the latter must not be infringed, the national authorities can impose “ legitimate restrictions ” on them inasmuch as those restrictions are strictly necessary to protect society against violence. – Conclusion on the nature of the solitary confinement imposed on the applicant 136. The Court concludes that for the period up to 17 November 2009, the applicant cannot be said to have been detained in total sensory or social isolation. His social isolation at that time was partial and relative. Since 17 November 2009 ( for the remainder of the period under consideration, see § 96 above ), the applicant also cannot be deemed to have been maintained in strict social isolation, despite the major de facto restrictions to his communication with his lawyers. iv. Duration of the applicant ’ s social isolation 137. The Court finds that the applicant was kept in relative social isolation from 12 May 2005 to 17 November 2009, that is to say for approximately four years and six months. It should be remembered that on 12 May 2005, when the Court gave its judgment on the previous application lodged by the applicant, the latter, who had been arrested on 15 February 1999, had already been detained in relative social isolation for approximately six years and three months. The total duration of the detention in relative social isolation was therefore nineteen years and nine months. 138. In view of the length of that period, a rigorous examination is called for by the Court in order to determine whether it was justified, whether the measures taken were necessary and proportionate in the light of the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant ’ s physical and mental condition was compatible with his continued solitary confinement ( see Ramirez Sanchez, cited above, § 136). 139. For the period preceding 17 November 2009, the restrictions placed on the applicant were comparable to those imposed on Mr Ramirez Sanchez, whose application was the subject of a Grand Chamber judgment finding no violation of Article 3 of the Convention ( ibid., particularly §§ 125-150). While Mr Ramirez Sanchez had been placed for a certain length of time in an area of the prison where inmates had no possibility of meeting one another or of being in the same room together, the applicant was the only inmate of the prison and therefore could only meet physicians and staff members on a day-to- day basis. He was visited by members of his family and his lawyers when marine transport conditions so permitted. 140. The Court accepts that the placement and maintenance of the applicant in such conditions of detention were motivated by the risk of escape from a high-security prison, the concern to protect the applicant ’ s life against those who hold him responsible for the deaths of a large number of people and the desire to prevent him from transmitting instructions to his armed organisation, the PKK, which still considered him as its leader. 141. Nevertheless, the Court already held in Ramirez Sanchez that it would be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate ( ibid., § 146). 142. The Court observes that the CPT, in its report on its visit from 19 to 22 May 2007, expressed similar concerns about the negative effects of prolonging conditions which were tantamount to relative social isolation. Finally, in March 2008, in the absence of any real progress on this matter by the Government, the CPT initiated the procedure of issuing a public statement, as provided for in Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment. 143. The Court notes the Government ’ s positive reaction with interest. In June 2008 they decided to construct a new building inside İmralı Prison in order to comply with the standards required by the CPT in relation to the applicant ’ s detention, and in October 2008 they held high-level negotiations on this matter with CPT representatives. The building work was completed in summer 2009, and in November 2009 the applicant and other prisoners transferred from other prisons were moved to the new building. 144. The Court finds that the regime applied to the applicant from November 2009 onwards gradually moved away from social isolation. His communication with the other inmates, which was initially very limited, progressed as the Government accepted most of the CPT ’ s relevant suggestions. In March 2010, in the light of these developments, the CPT discontinued the procedure which it had decided to initiate two years previously under Article 10 § 2 of the Convention for the Prevention of Torture. 145. The Court notes the CPT ’ s concern about the possible long - term effects of the prolonged lack of a television set in the applicant ’ s cell ( until 12 January 2012) and of the frequent interruptions in his communication with his lawyers and relatives. All these facilities help prevent prisoners ’, and therefore the applicant ’ s, social isolation. Prolonged absence of such facilities, combined with the “ time ” factor, that is to say over thirteen years ’ incarceration in the applicant ’ s case if the beginning of his detention is taken as the starting point, is liable to cause him a justified feeling of social isolation. In particular, the Court holds that although the choice of a remote island as the applicant ’ s place of detention was a matter for the Government, they are duty-bound, in such cases, to ensure that the prison in question has appropriate means of transport in order to facilitate the normal operation of the regulations on visits to prisoners. v. Conclusions - Prior to 17 November 2009 146. The Court reiterates that in its judgment of 12 May 2005 it took note of the CPT ’ s recommendations that the applicant ’ s relative social isolation should not be allowed to continue for too long and that its effects should be attenuated by giving him access to a television and to telephone communications with his lawyers and close relatives ( see Öcalan, cited above, § 195). It also reiterates that in the same judgment it pointed out that the general conditions in which the applicant is being detained at İmralı Prison had not reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention ( see Öcalan, cited above, § 196). However, the Court now notes that the applicant ’ s social isolation continued until 17 November 2009 under more or less the same conditions as those observed in its 12 May 2005 judgment. In its assessment of the applicant ’ s conditions of detention prior to 17 November 2009, the Court takes account of the conclusions set out by the CPT in its report on its May 2007 visit ( see § 72 above ) and its own findings, particularly the extension to nineteen years and nine months of the period during which the applicant was the prison ’ s only inmate (see paragraph 137 above ), the lack of communication media to prevent the applicant ’ s social isolation ( protracted absence of a television set in the cell and of telephone calls – see paragraphs 116 and 119 above ), excessive restrictions on access to news information ( see paragraphs 116, 117 and 119 above ), the persistent major problems with access by visitors to the prison ( for family members and lawyers ) and the insufficiency of the means of marine transport in coping with weather conditions ( see paragraph 129 above ), the restriction of staff communication with the applicant to the bare minimum required for their work ( see paragraphs 123 and 124 above ), the lack of any constructive doctor/patient relationship with the applicant ( see paragraph 120 above ), the deterioration in the applicant ’ s mental state in 2007 resulting from a state of chronic stress and social and affective isolation combined with a feeling of abandonment and disillusionment ( see paragraph 122 above ), and the fact that no alternatives were sought to the applicant ’ s solitary confinement until June 2008, despite the fact that the CPT had mentioned in its report on the May 2007 visit the negative effects of prolonging conditions tantamount to social isolation ( see paragraph 122 above ). The Court concludes that the conditions of detention imposed on the applicant during that period attained the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention. 147. There has accordingly been a violation of Article 3 of the Convention in relation to the applicant ’ s conditions of detention up to 17 November 2009. - After 17 November 2009 148. In its assessment of the period subsequent to 17 November 2009, the Court takes into account, in particular, the physical conditions of the applicant ’ s detention, the Government ’ s positive reaction in the light of the procedure initiated by the CPT under Article 10 § 2 of the Convention for the Prevention of Torture, which resulted in the transfer of other prisoners to İmralı Prison ( see paragraph 143 above ), the improvement in the applicant ’ s access to news and information during this period ( see paragraph 118 above ), the substantial reinforcement of communication and collective activities between the applicant and the other inmates in response to the CPT ’ s observations following its visit in January 2010 ( see paragraph 126 above ), the increased frequency of visits authorised and the quality of the applicant ’ s conversations with his family, without any glass barrier ( see paragraphs 129 and 130), and the provision of facilities mitigating the effects of the relative social isolation ( telephone contact since March 2010, television in his cell since January 2012). The Court concludes that the conditions of detention imposed on the applicant during this period did not attain the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention. 149. There has accordingly been no violation of Article 3 of the Convention on the ground of the conditions of detention imposed on the applicant during the period after 17 November 2009. The Court stresses that the finding of no violation of Article 3 of the Convention cannot be interpreted as an excuse for the national authorities not to provide the applicant with more facilities for communicating with the outside world or to relax his conditions of detention, because as the length of time he has spent in detention increases, it may become necessary to grant him such facilities in order to ensure that his conditions of detention remain in conformity with the requirements of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE RESTRICTIONS PLACED ON VISITS BY AND COMMUNICATION WITH FAMILY MEMBERS 1 50. The applicant complained of a violation of his right to respect for his family life on the basis of some of the facts which he presented under Article 3 of the Convention, that is to say the restrictions imposed on his contact with members of his family, telephone calls, correspondence and visits. 151. Article 8 of the Convention provides : “ 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ” 152. The Government contested that argument and broadly reiterated the observations presented under Article 3 of the Convention concerning communication between the applicant and the members of his family. They pointed out that the applicant could communicate with his relatives subject to the restrictions imposed by legislation concerning high-security prisons and the execution of sentences (that is to say, in the present case, life imprisonment. They add that where a disciplinary sanction was imposed on the applicant for failing to comply with the prohibition on transmitting messages to his former armed organisation, this had an impact on the exercise of the right to receive visits. ... B. Merits 154. The Court reiterates that any detention which is lawful for the purposes of Article 5 of the Convention entails by its nature a limitation on private and family life. However, it is an essential part of a prisoner ’ s right to respect for family life that the prison authorities assist him in maintaining contact with his close family ( see Messina v. Italy (no. 2), cited above, § 61). 155. In the present case, the Court stresses that the applicant, who was sentenced to life imprisonment in a high- security prison, is subject to a special detention regime which involved restricting the number of family visits ( once a week, on request ) and, up until 2010, imposed measures to monitor the visits ( the prisoner was separated from his visitors by a glass panel ). 156. The Court considers that these restrictions undoubtedly constitute an interference with the applicant ’ s exercise of his right to respect for his family life as secured by Article 8 § 1 of the Convention ( see X v. the United Kingdom, no. 8065/77, Commission decision of 3 May 1978, Decisions and Reports 14, p. 246). 157. Such interference is not in breach of the Convention if it is “in accordance with the law”, pursues one or more legitimate aims under paragraph 2 of Article 8 and may be regarded as a measure which is “necessary in a democratic society”. 158. The Court notes that the security measures were imposed on the applicant in accordance with the provisions of the legislation on the regime for prisoners considered dangerous, particularly Law no. 5275 on the execution of sentences and preventive measures, and that they were therefore “ in accordance with the law”. It also considers that the measures in question pursued aims which were legitimate for the purposes of Article 8 § 2 of the Convention, namely the protection of public safety and the prevention of disorder and crime. 159. As regards the necessity of the interference, the Court reiterates that in order to be necessary “in a democratic society ”, interference must correspond to a pressing social need and, in particular, must be proportionate to the legitimate aim pursued ( see, among other authorities, McLeod v. the United Kingdom, 23 September 1998, § 52, Reports 1998-VII). 160. The Court notes that the regulations on contacts with families for life prisoners in high- security prisons tend to limit the existing relations between the persons concerned and their original criminal environment in order to minimise the risk of their maintaining personal contacts with the criminal organisations. The Court reiterates that in its judgment of 12 May 2005 ( see Öcalan, cited above, § 192) and in paragraph 132 above, it considered the Government ’ s concerns justified, as they feared that the applicant might use his communications with the outside to resume contact with members of the armed separatist movement of which he was the leader. The Court is not in a position to assess whether the circumstances of the applicant ’ s detention had radically changed between 2005 and the date of the said restrictions on communication. 161. The Court also reiterates that many of the States parties to the Convention have stricter security regimes for dangerous prisoners. These regimes are based on stepping up surveillance of communications with the outside in respect of prisoners posing a particular threat to internal order in the prison and law and order outside. 162. In the light of these arguments, the Court cannot doubt the need for the special detention regime as applied to the applicant. 163. As regards striking a balance between the applicant ’ s individual interest in communicating with his family and the general interest of limiting his contact with the outside, the Court notes that the prison authorities attempted to help the applicant as far as possible to remain in contact with his immediate family, authorising visits once a week without any limit on the number of visitors. Furthermore, from 2010 onwards the prison authorities, further to the CPT ’ s recommendations, allowed the applicant to receive his visitors seated at a table ( see, conversely, Trosin v. Ukraine, no. 39758/05, §§ 43-47, 23 February 2012). The case file also shows that ten minutes of telephone calls are authorised per fortnight. Correspondence between the applicant and his family is functioning normally, apart from the inspections and censorship carried out in order to prevent exchanges relating to PKK activities. 164. In the light of these considerations, the Court considers that the restrictions on the applicant ’ s right to respect for his family life did not exceed those which are necessary in a democratic society for the protection of public safety and the prevention of disorder and crime, within the meaning of Article 8 § 2 of the Convention. There has therefore been no violation of Article 8 of the Convention on this account. III. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 16 5. The applicant further complained of a violation of Article 7 of the Convention, which provides: “ 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. ” A. The parties 166. The applicant submitted that the commutation of the death penalty into life imprisonment without parole infringed Article 7 of the Convention, such commutation having resulted from a legislative amendment made subsequently to his conviction ( under Law no. 4771, which came into force on 9 August 2002). Prior to this amendment, persons sentenced to the death penalty whose execution had not been approved by the National Assembly had remained in prison for a maximum term of thirty-six years. In particular, the applicant would appear to have put forward two separate arguments: firstly he submitted that when he had been sentenced to the death penalty, the latter had, from the outset, been equivalent to a maximum prison term of thirty-six years, because in 1984 Turkey had declared a moratorium on the enforcement of the death penalty; secondly, the applicant would seem to be saying that after the abolition of capital punishment, the death penalty to which he had been sentenced was commuted first of all into an ordinary life sentence (with a possibility of release on parole after a specific minimum term) and then, much later on, into aggravated life imprisonment ( with no possibility of parole until the end of his life). 167. The applicant also contended that the social isolation to which he had been subjected had not been set out in any legislation and amounted to an infringement of his rights under Articles 6 and 7 of the Convention. 168. The Government contested that argument. They first of all affirmed that under the legislation in force before the applicant ’ s conviction, persons sentenced to the death penalty, where execution of the penalty had been formally rejected by Parliament, had been eligible for parole after a period of thirty -six years. However, Parliament had never taken a decision rejecting the execution of the death penalty imposed on the applicant. Under Law no. 4771 of 9 August 2002, Parliament had abolished the death penalty and replaced it with a “ reinforced life sentence ” that is to say a life sentence to last for the remainder of the person ’ s life without any possibility of parole. This principle had been followed in all the subsequent legislation on sentencing for crimes of terrorism ( including Law no. 5218, which had abolished the death penalty and amended a number of laws, the new Law no. 5275 on the execution of sentences and preventive measures, and Law no. 5532 amending specific provisions of the Anti - Terrorism Law ). The Government submitted that it had been clear to the applicant, at all stages in proceedings, that his conviction under Article 125 of the Criminal Code initially involved the death penalty and later on, following the abolition of this penalty, a life sentence without parole. B. The Court ’ s assessment ... 2. Merits ( a) General principles 171. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 92, 17 September 2009; S.W. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335 ‑ B; and C.R. v. the United Kingdom, 22 November 1995, § 32, Series A no. 335 ‑ C). 172. Article 7 § 1 of the Convention does not confine itself to prohibiting the retrospective application of criminal law to the detriment of the defendant. It also embodies in general terms the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy ( see, among other authorities, Kafkaris v. Cyprus [GC], no. 21906/04, § 138, ECHR 2008, and Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000 ‑ VII). 173. It follows that offences and the relevant penalties must be clearly defined by law. The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision ( see Scoppola (no. 2), cited above, § 95; Coëme and Others, cited above, § 145; and Achour v. France [GC], no. 67335/01, § 43, ECHR 2006 ‑ IV). 174. The term “law” implies qualitative requirements, including those of accessibility and foreseeability ( see Kafkaris, cited above, § 140, and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries ( see Achour, cited above, § 41). The individual must be able to know from the wording of the relevant provision and, if need be, with the assistance of the courts ’ interpretation of it, what acts and omissions will make him criminally liable ( see, among other authorities, Scoppola (no. 2), cited above, § 94; Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A; and Cantoni v. France, 15 November 1996, § 29, Reports 1996 ‑ V). Furthermore, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail ( see, among other authorities, Cantoni, cited above, § 35, and Achour, cited above, § 54). 175. The Court notes that the principle of retrospectiveness of the more lenient criminal law, considered by the Court in Scoppola (no. 2), as guaranteed by Article 7, is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant ( see Scoppola (no. 2), cited above, § 109). 176. In its decision in the case of Hummatov v. Azerbaijan ( ( dec. ), nos. 9852/03 and 13413/04, 18 May 2006), the Court approved the parties ’ shared opinion that a life sentence was not a harsher penalty than the death penalty. ( b) Application of these principles to the present case 177. The Court notes that the parties agree that on the date of their commission, the crimes of which the applicant was accused were subject to the death penalty under Article 125 of the Criminal Code, to which penalty the applicant was in fact sentenced. The legal basis for the applicant ’ s conviction and sentence was therefore the criminal law applicable at the material time, and his sentence corresponded to that prescribed in the relevant provisions of the Criminal Code ( see, to the same effect, Kafkaris, cited above, § 143). The Court also notes that the parties agree that life imprisonment is a more lenient penalty than the death penalty ( see, to the same effect, Hummatov, cited above ). 178. The parties ’ submissions primarily concern, first of all, the mode of execution of the death penalty before it was abolished, and secondly, the events following the commutation of the applicant ’ s death penalty to “ life imprisonment ”, and the interpretation of the latter sentence. 179. The Court will first of all examine whether the death penalty imposed on the applicant was equivalent from the outset to a prison sentence of a maximum of thirty -six years, owing to the moratorium on the enforcement of the death penalty in Turkey since 1984. 180. The Court reiterates that it has previously found that, since the applicant had been convicted of the most serious crimes contained in the Turkish Criminal Code, and given the general political controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the question of whether he should be executed, it was not possible to rule out the possibility that the risk of the sentence being implemented was a real one. In fact, the risk remained until the Ankara National Security Court ’ s judgment of 3 October 2002 commuting the death penalty to which the applicant had been sentenced to life imprisonment ( see Öcalan, cited above, § 172). 181. Furthermore, the Court observes that, as the Government pointed out, under the legislation in force before the abolition of the death penalty in Turkey, persons sentenced to this penalty could be released on parole after a period of thirty -six years only where the enforcement of the said penalty had been formally rejected by Parliament. The fact is that the applicant ’ s death penalty was never submitted to Parliament for approval and was never the subject of a formal parliamentary decision rejecting it. It follows that the Court cannot accept the applicant ’ s contention that the penalty imposed on him had amounted, from the outset, to a thirty -six year prison sentence. 182. Secondly, the Court will consider the argument that the death penalty imposed on the applicant was commuted following the abolition of that penalty, first of all into an “ ordinary ” life sentence and then, much later and in breach of Article 7 of the Convention, into “ aggravated ” life imprisonment, without any possibility of parole. 183. On this matter, the Court notes first of all that the Turkish Criminal Code clearly prohibits retrospective application of a provision laying down a “ more severe penalty ” and the principle of retrospective enforcement of the “ more lenient penalty ”. 184. The Court will then consider whether the successive reforms of Turkish criminal legislation during the process of abolishing the death penalty cleared the way for allowing the applicant to be released after a specified period of imprisonment. 185. It notes that Law no. 4771 of 9 August 2002, which for the first time provided for the abolition of the death penalty and replaced it with life imprisonment, clearly states that this latter penalty must consist of actual incarceration of the sentenced persons for the remainder of his life, without any possibility of release on parole. The Court also notes that Law no. 5218 of 21 July 2004 on the abolition of the death penalty confirms the provisions of Law no. 4771, while also stipulating that the possibility of parole as provided for in the legislation on the enforcement of sentences does not apply to life sentences passed on persons who were initially sentenced to the death penalty for terrorist offences, and that such persons must serve their prison sentence until the end of their lives. The laws amending the Criminal Code and the Law on sentence enforcement only confirmed this principle. 186. It follows that, at the time of the abolition of the death penalty, no law or statute provided the applicant with the possibility of release on parole after a minimum period of incarceration. The fact that different terms ( reinforced life imprisonment, aggravated life imprisonment ) were used in the various laws on the matter does not alter this finding. 187. The Court will also consider the applicant ’ s complaint regarding the lack of legislation against the social isolation imposed on him up to 2009. It reiterates that the social isolation in question was not imposed under any decision taken by the authorities to confine the applicant in a cell in an ordinary prison, but rather resulted from a concrete situation, namely the fact that the applicant was the only inmate in the prison. This highly exceptional measure, which consisted in earmarking an entire prison for a single prisoner, did not form part of a detention regime geared to punishing the applicant more severely. It was motivated solely by the concern to protect the applicant ’ s life and to prevent the risk of escape linked to the conditions prevailing in ordinary prisons, including high- security establishments. The Court takes the view that this was such an extraordinary measure that a State could not be reasonably expected to provide details in its legislation on the regime to be applied in such cases. 188. Moreover, the applicant, who had been wanted for serious offences carrying the death penalty, did not contend before the Court that he could not have foreseen that he would be incarcerated under exceptional conditions should he be arrested. 189. In conclusion, the Court finds that there has been no violation of Article 7 of the Convention in the present case. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE LIFE SENTENCE PASSED ON THE APPLICANT WITHOUT POSSIBILITY OF RELEASE ON PAROLE 190. The applicant submitted that his life sentence without parole, in conjunction with the social isolation imposed on him, constituted a violation of Article 3 or Article 8 of the Convention. He also stated that a life sentence which took no account of the prisoner ’ s possible good conduct or rehabilitation, associated with a strict prison regime, attained the level of severity required by Article 3 of the Convention to constitute inhuman punishment. 191. The Government contested that argument. They referred to the nature of the crimes of which the applicant had been convicted and stressed the applicant ’ s overriding responsibility for the campaign of violence which his former organisation had conducted and which had claimed the lives of thousands of individuals, including many innocent civilian victims. The Government reiterated that the applicant had been sentenced to the death penalty, which the Turkish legislature had subsequently commuted into life imprisonment without parole. As regards the allegation concerning social isolation, the Government affirmed that the applicant was receiving visits and engaging in collective activities with the other prisoners within the limits permitted by the legislation applicable to this category of prisoner ( the fact that he had initially been the only inmate of İmralı Prison had not been the result of any decision to isolate him but had been geared solely to protecting his life ). According to the Government, the applicant had been subjected to disciplinary sanctions – for transmitting messages to a terrorist organisation or for any other disciplinary offence – in exactly the same way as all the other prisoners. ... B. Merits 193. The Court reiterates that the imposition of a life sentence on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention ( see Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, § 106, ECHR 2013 ( extracts ), and Kafkaris, cited above, § 97). 194. At the same time, the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Vinter and Others [GC], cited above, § 107; Nivette v. France (dec.), no. 44190/98, ECHR 2001 ‑ VII; Stanford v. the United Kingdom (dec.), no. 73299/01, 12 December 2002; and Wynne v. the United Kingdom (dec.), no. 67385/01, 22 May 2003). 195. However, a life sentence does not become irreducible by the mere fact that in practice it may be served in full. As the Court pointed out in its Vinter and Others judgment (§ 108): “ ... no Article 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because States have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender ’ s continued detention where necessary for the protection of the public (see, mutatis mutandis, T. v. the United Kingdom, § 97, and V. v. the United Kingdom, § 98, both cited above). Indeed, preventing a criminal from re-offending is one of the ‘ essential functions ’ of a prison sentence (see Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002 ‑ VIII; Maiorano and Others v. Italy, no. 28634/06, § 108, 15 December 2009; and, mutatis mutandis, Choreftakis and Choreftaki v. Greece, no. 46846/08, § 45, 17 January 2012). This is particularly so for those convicted of murder or other serious offences against the person. The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the State ’ s positive obligation to protect the public; States may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous (see, for instance, Maiorano and Others, cited above). ” 196. In fact, in determining whether a life sentence in a given case can be regarded as irreducible, the Court has sought to ascertain whether a life prisoner can be said to have any prospect of release. Analysis of Court case-law on this point shows that where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 ( see Vinter and Others [GC], cited above, § § 108 and 109). 197. In its Grand Chamber judgment in the case of Vinter and Others, the Court set out the main reasons why, in order to remain compatible with Article 3, a life sentence must provide both a prospect of release and a possibility of review : “ 111. It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated. 112. Moreover, if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes – to paraphrase Lord Justice Laws in Wellington – a poor guarantee of just and proportionate punishment ... 113. Furthermore, as the German Federal Constitutional Court recognised in the Life Imprisonment case ..., it would be incompatible with the provision on human dignity in the Basic Law for the State forcefully to deprive a person of his freedom without at least providing him with the chance to someday regain that freedom. It was that conclusion which led the Constitutional Court to find that the prison authorities had the duty to strive towards a life sentenced prisoner ’ s rehabilitation and that rehabilitation was constitutionally required in any community that established human dignity as its centrepiece. Indeed, the Constitutional Court went on to make clear in the subsequent War Criminal case that this applied to all life prisoners, whatever the nature of their crimes, and that release only for those who were infirm or close to death was not sufficient ... Similar considerations must apply under the Convention system, the very essence of which, as the Court has often stated, is respect for human dignity (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III, and V.C. v. Slovakia, no. 18968/07, § 105, ECHR 2011 ) .” 198. In the same judgment ( Vinter and Others ), the Court, having considered the relevant European and international material which currently confirms the principle that all prisoners, including those serving life sentences, must have a possibility of reforming and rehabilitating and the prospect of release if such rehabilitation is achieved, drew a number of specific conclusions on life sentencing in the light of Article 3: “ 119. ... the Court considers that, in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds. 120. However, the Court would emphasise that, having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing ..., it is not its task to prescribe the form (executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place. This being said, the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter ... 121. It follows from this conclusion that, where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention. 122. Although the requisite review is a prospective event necessarily subsequent to the passing of the sentence, a whole life prisoner should not be obliged to wait and serve an indeterminate number of years of his sentence before he can raise the complaint that the legal conditions attaching to his sentence fail to comply with the requirements of Article 3 in this regard. This would be contrary both to legal certainty and to the general principles on victim status within the meaning of that term in Article 34 of the Convention. Furthermore, in cases where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release. A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration. ” 199. In the instant case, the Court first of all reiterates its above- mentioned finding that since 17 November 2009, the applicant ’ s relative social isolation – which has been gradually reduced thanks to the improvements made by the Government in line with the CPT ’ s recommendations – has not attained the level of severity required to constitute a violation of Article 3 of the Convention. 200. It remains to be determined whether, in the light of the foregoing observations, the life sentence without parole imposed on the applicant can be regarded as irreducible for the purposes of Article 3 of the Convention. 201. The Court reiterates that the applicant was initially sentenced to capital punishment, for particularly serious crimes, namely having organised and conducted an unlawful armed campaign which caused a great many deaths. Following the promulgation of a law abolishing the death penalty and replacing death sentences which had already been imposed with sentences to aggravated life imprisonment, the applicant ’ s sentence was commuted by decision of the Assize Court, applying the new legal provisions, to aggravated life imprisonment. Such a sentence means that the applicant will remain in prison for the rest of his life, regardless of any consideration relating to his dangerousness and without any possibility of parole, even after a specific period of incarceration ( see paragraph 182 above regarding the Court ’ s findings on the complaints under Article 7 of the Convention). 202. The Court notes in that connection that section 107 of Law no. 5275 on the enforcement of sentences and security measures clearly excludes the applicant ’ s case from the scope of release on parole, as he was convicted of crimes against the State under a provision of the Criminal Code ( Book 2, Chapter 4, sub -chapter 4 ). It also notes that under Article 68 of the Criminal Code the sentence imposed on the applicant is one of the exceptions which are not subject to the statute of limitations. As a result, current legislation in Turkey clearly prohibits the applicant, in his capacity as a person sentenced to aggravated life imprisonment for a crime against the security of the State, from applying, at any time while serving his sentence, for release on legitimate penological grounds. 203. Furthermore, it is true that under Turkish law, in the event of the illness or old age of a life prisoner, the President of the Republic may order his immediate or deferred release. Nevertheless, the Court considers that release on humanitarian grounds does not correspond to the concept of “ prospect of release ” on legitimate penological grounds ( see, to similar effect, Vinter and Others, § 129). 204. It is also true that the Turkish legislature has, at fairly regular intervals, adopted general or partial amnesty laws ( the latter type of law grants release on parole after a minimum term ) in order to help resolve major social problems. However, there is no evidence before the Court that such a plan is being prepared by the Government to provide the applicant with a prospect of release. The Court must concern itself with the law as applied in practice to prisoners sentenced to aggravated life imprisonment. That legislation is characterised by a lack of any mechanism for reviewing, after a specified minimum term of incarceration, life sentences imposed for crimes such as those committed by the applicant with a view to verifying the persistence of legitimate reasons for continuing his incarceration. 205. As regards the argument that the applicant was sentenced to life imprisonment without parole because he had committed particularly serious terrorist crimes, the Court reiterates that the provisions of Article 3 of the Convention allow for no derogation and prohibit inhuman or degrading punishment in absolute terms (see paragraphs 97-98 above). 206. In the light of these findings, the Court considers that the life sentence imposed on the applicant cannot be deemed reducible for the purposes of Article 3 of the Convention. It concludes that in this context the requirements of this provision were not fulfilled in respect of the applicant. 207. There has accordingly been a violation of Article 3 of the Convention on this point. Nevertheless, the Court considers that this finding of a violation cannot be understood as giving the applicant the prospect of imminent release. The national authorities must review, under a procedure to be established by adopting legislative instruments and in line with the principles laid down by the Court in paragraphs 111 ‑ 113 of its Grand Chamber judgment in the case of Vinter and Others ( quoted in paragraph 194 of this judgment ), whether the applicant ’ s continued incarceration is still justified after a minimum term of detention, either because the requirements of punishment and deterrence have not yet been entirely fulfilled or because the applicant ’ s continued detention is justified by reason of his dangerousness. ... | Application of the death penalty: The Court held that there had been no violation of Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment) or 14 (prohibition of discrimination) of the Convention, as the death penalty had been abolished and the applicant’s sentence commuted to life imprisonment. Convention States’ practice concerning the death penalty: The Court held that the death penalty in peacetime had come to be regarded in Europe as an unacceptable form of punishment which was no longer permissible under Article 2 of the Convention. However, no firm conclusion was reached in respect of whether the States Parties to the Convention had established a practice of considering the execution of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention. In any event, the Court held that it would be contrary to the Convention, even if Article 2 were to be interpreted as still permitting the death penalty, to implement a death sentence following an unfair trial. Death penalty following an unfair trial: The Court noted that Article 2 of the Convention precluded the execution of the death penalty in respect of a person who had not had a fair trial. The fear and uncertainty about the future generated by a death sentence, where there existed a real possibility that the sentence would be enforced, inevitably caused strong human anguish to people. Such anguish could not be dissociated from the unfairness of the proceedings underlying the sentence which, given that human life was at stake, became unlawful under the Convention. In the applicant’s case, a moratorium on the execution of the death penalty had been in force in Turkey since 1984 and the Turkish Government had stayed his execution in accordance with the Court’s interim measure. Yet, given that the applicant had been Turkey’s most wanted person, a real risk that his sentence might be implemented had existed for more than three years prior to the decision to abolish the death penalty. Consequently, the imposition of the death sentence following an unfair trial by a court whose independence and impartiality were open to doubt had amounted to inhuman treatment, in violation of Article 3 of the Convention. |
497 | Entitlement to social security benefits | II. RELEVANT LAW A. Benefits for industrial injury and disease in the United Kingdom 26. Reduced Earnings Allowance (REA) is an earnings-related additional benefit under the statutory occupational accident and disease scheme which was put in place in 1948. Originally the benefit was known as Special Hardship Allowance, but it was recast and renamed by the Social Security Act 1986. At the time of the introduction of these applications, the relevant legislation was Part V of the Social Security Contributions and Benefits Act 1992. 27. REA has, since 1990, been funded by general taxation rather than the National Insurance scheme. It is payable to employees or former employees who have suffered an accident at work or an occupational disease, with the purpose of compensating for an impairment in earning capacity. The weekly amount is based on a comparison between the claimant ’ s earnings prior to the accident or disease and those in any actual or notional alternative employment still considered suitable despite the disability, subject to a maximum weekly award of GBP 40. It is a non-contributory benefit, in that eligibility is not conditional on any or a certain number of contributions having been made to the National Insurance Fund. 28. Under more recent legislation the benefit is being phased out altogether and no fresh right to REA can arise from an accident incurred or a disease contracted on or after 1 October 1990. In addition, a succession of legislative measures after 1986 attempted to remove or reduce it for claimants no longer of working age, in respect of whom the government considered any comparison of “earnings” to be artificial. Before these changes, there had been a continued right to REA notwithstanding the attainment of retirement age and REA had been payable concurrently with the State pension. 29. The method chosen to reduce eligibility was to impose cut-off or limiting conditions by reference to the ages used by the statutory old-age pension scheme, namely 65 for men and 60 for women until 1996, then tapering up to eventual equality at 65 in 2020 (Part II of the Social Security Contributions and Benefits Act 1992, as amended by the Pensions Act 1995 – see paragraphs 3 1 -3 5 below ). 30. Under the new provisions (Social Security Contributions and Benefits Act 1992), all REA recipients who, before 10 April 1989, had reached either ( a ) 70, if a man, or 65, if a woman, or ( b ) the date of retirement fixed by a notice, at age 65+ for a man or 60+ for a woman, would receive a frozen rate of REA for life. All other REA recipients would cease to receive REA, and would instead receive Retirement Allowance (RA) either on reaching ( a ) 70, if a man, or 65, if a woman, or ( b ) the date of retirement fixed by a notice, at age 65+ for a man or 60+ for a woman or on giving up employment at 65 for a man or 60 for a woman. B. State pensionable age in the United Kingdom 31. State retirement pensions are funded entirely from the National Insurance Fund, to which all employers and the majority of the working population, whether employed or self-employed, are liable to pay compulsory contributions. The individual ’ s liability for such contributions ceases at “pensionable age”. 32. Men and women born before 6 April 1950 attain pensionable age at 65 and 60 respectively (Schedule 4 to the Pensions Act 1995). The present pension age for women was introduced in 1940 by the Old Age and Widows ’ Pensions Act. Prior to that, State pension age was 65 for both men and women. According to the government ’ s Green and White Papers entitled respectively “Options for Equality in State Pension Age” ( Cm 1723, December 1991 ) and “Equality in State Pension Age” ( Cm 2420, December 1993 ), the lower age for women was introduced in response to a campaign by unmarried women, many of whom spent much of their lives caring for dependent relatives, and also as part of a package to enable married couples, where the wife was usually younger than the husband and financially dependent on him, to receive a pension at the couples ’ rate when the husband reached 65. 33. In the 1993 White Paper, the government pointed out that while, historically, women ’ s entitlement to a State pension was frequently reduced because their traditional role of caring for the family in the home led to fragmented employment records, the number of women in employment had greatly increased in recent years: in 1967, 37% of employees were women, compared with 50% in 1992 (although the statistics did not differentiate, for example, between full- and part-time workers). Moreover, a home responsibilities provision, introduced in 1978, now helped those whose working life was shortened because of time spent caring for a child or sick or disabled person to build up entitlement to a basic pension, and the concession which allowed married women to pay reduced - rate National Insurance contributions, leaving them dependent on their husbands ’ contributions, was withdrawn in 1977. The Sex Discrimination Act 1986 had amended the Sex Discrimination Act 1975 to make it unlawful for an employer to have different retirement ages for men and women. The view of the government, expressed in the White Paper, was that the preferential pension age for women had no place in modern society and it was proposed to equalise pensionable age for men and women. 34. It was decided to equalise at 65, rather than a lower age, because people were living longer and healthier lives and because the proportion of pensioners in the population was set to increase. It was estimated that any move towards paying male State retirement pensions earlier than 65 would cost in the order of GBP 9.8 billion per year gross (representing additional pension payments to men between 60 and 65 and lost income from National Insurance contributions from these men) or a net sum of GBP 7 .5 billion per year (when account was taken of savings on payment of other, non-National Insurance Fund benefits to such men). It was decided to introduce the change gradually to ensure that women affected by the change and their employers had ample time to adjust their expectations and arrange their financial affairs accordingly. 35. In order to bring male and female pensionable age into line with each other, therefore, section 126 of the Pensions Act 1995, together with Schedule 4, provide for the pensionable age of women born between 6 April 1950 and 5 April 1955 to increase progressively. With effect from 2010, the pensionable age of men and women in the United Kingdom will begin to equalise, and by 2020 both sexes will attain pensionable age at 65. C. Pensionable age in other European countries 36. According to information provided by the Government in December 2004, men and women became eligible to receive an old - age pension at the same age in Andorra, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Liechtenstein, Luxembourg, Monaco, the Netherlands, Norway, Portugal, San Marino, Slovakia, Spain and Sweden. 37. Women were entitled to receive a pension at a younger age than men in Albania, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, the Czech Republic, Estonia, Georgia, Hungary, Italy, Latvia, Lithuania, Malta, Moldova, Poland, Romania, the Russian Federation, Serbia and Montenegro, Slovenia, Switzerland, “ the former Yugoslav Republic of Macedonia ” and Ukraine. Many of these countries were phasing in equalisation of pensionable age. This was to take place in Austria between 2024 and 20 33; in Azerbaijan by 2012; in Belgium between 1997 and 2009; in Estonia before 2016; in Hungary by 2009; in Latvia by 2008; and in Lithuania by 2006. D. European Union Directive on equal treatment in social security 38. Council Directive 79/7/EEC of 19 December 1978 (“the Directive”) concerns the progressive implementation of the principle of equal treatment for men and women in matters of social security. Article 4(1) of the Directive prohibits all discrimination on grounds of sex, in particular as concerns the calculation of benefits. Such discrimination can be justified only under Article 7(1)(a), which provides that the Directive is to be without prejudice to the right of member States to exclude from its scope the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits. Under Article 7(2), “ [m] ember States shall periodically examine matters excluded under paragraph 1 in order to ascertain, in the light of social developments in the matter concerned, whether there is justification for maintaining the exclusions concerned ”. E. ECJ consideration of Article 7(1)(a) of the Directive 39. In case C-9/91 The Queen v. Secretary of State for Social Security, ex parte Equal Opportunities Commission ( “ EOC ”) [1992] European Court Reports (ECR ) I-4297, the ECJ found that Article 7(1)(a) must be interpreted not only as authorising the retention of a statutory pensionable age which differed according to sex, but also forms of discrimination affecting access to certain benefits which were “necessarily linked” to the difference in pensionable age. Inequality between men and women, with respect to the contribution periods required in order to obtain a pension of an identical amount, constituted such discrimination where, having regard to the financial equilibrium of the national pension system in the context of which it appeared, it could not be disassociated from the difference in pensionable age. 40. In case C-328/91 Secretary of State for Social Security v. Evelyn Thomas and Others [1993] ECR I-1247, the ECJ held that the reasoning from the EOC decision extended to benefits linked to differential State retirement ages where “ such discrimination is objectively necessary in order to avoid disrupting the complex financial equilibrium of the social security system or to ensure consistency between retirement pension schemes and other benefit schemes ”. 41. In the present applicants ’ case, C-196/98 Hepple and Others v. Adjudication Officer [2000] ECR I-3701, the ECJ applied the reasoning of Evelyn Thomas and Others to find, first, that “removal of the discrimination at issue ... would have no effect on the financial equilibrium of the social security system of the United Kingdom as a whole” (§ 29). However, it went on to hold that it had been objectively necessary to introduce different age conditions based on sex in order to maintain coherence between the State retirement pension scheme and other benefit schemes, since (§§ 31-34) “ ... the principal aim of the successive legislative amendments ... was to discontinue payment of REA – an allowance designed to compensate for an impairment of earning capacity following an accident at work or occupational disease – to persons no longer of working age by imposing conditions based on the statutory retirement age. Thus, as a result of those legislative amendments, there is coherence between REA, which is designed to compensate for a decrease in earnings, and the old-age pension scheme. It follows that maintenance of the rules at issue in the main proceedings is objectively necessary to preserve such coherence. That conclusion is not invalidated by the fact that REA is replaced, when the beneficiary reaches retirement age and stops working, by RA, the rate of which is 25% of REA, since RA is designed to compensate for the reduction in pension entitlement resulting from a decrease in earnings following an accident at work or occupational disease. It follows that discrimination of the kind at issue in the main proceedings is objectively and necessarily linked to the difference between the retirement age for men and that for women, so that it is covered by the derogation for which Article 7(1)(a) of the Directive provides.” THE LAW ALLEGED VIOLATION OF ARTICLE 1 4 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 42. The applicants claimed that the scheme of Reduced Earnings Allowance ( REA – see paragraph 26 above) and Retirement Allowance ( RA – see paragraph 30 above), as it applied to each of them, was discriminatory, in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. The latter provision reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 43. In its admissibility decision of 6 July 2005, the Court held that the applicants ’ interests fell within the scope of Article 1 of Protocol No. 1, and that Article 14 of the Convention was therefore applicable. It must now consider whether there has been a breach of Article 14 taken in conjunction with Article 1 of Protocol No. 1. A. The parties ’ submissions 1. The applicants 44. The applicants did not deny that it had been reasonable for the respondent State to seek to address the anomaly whereby industrial injury earnings-replacement benefits continued to be paid to workers after the age when they would, in any event, have ceased paid employment. There was, however, no justification for introducing sex-based discrimination into the scheme by linking the cut-off date to pension age. The same objective could have been achieved, without unacceptable financial consequences, by adopting a common age-limit for men and women and/ or by the use of overlapping benefit regulations, ensuring that any State pension received was offset against REA. Other age-related benefits, such as winter fuel payment, prescription charges and bus passes were paid with a common age threshold. 45. It was important to note that the Commissioner, in his reference to the European Court of Justice ( ECJ – see paragraphs 17 -18 above), had found that the introduction after 1986 of unequal age conditions on REA had not been necessary to maintain the financial equilibrium of either the REA or the pension scheme. Although the ECJ had decided against them, the applicants emphasised that it had been adjudicating on a different question, namely whether the amendments fell within the scope of the Article 7 exception to the non-discrimination provisions of the Directive. In particular, the ECJ did not have to decide whether there was a proportionate justification for the discrimination, but was instead construing the phrase “the possible consequences thereof for other benefits” in Article 7. The applicants did not consider that a finding in their favour would have wider implications for the case-law of the ECJ under Article 7, since the impact would be limited to other cases where there was no financial necessity to maintain the link between the benefit in question and pensionable age, and no compelling reason to do so. Moreover, the mere fact that a measure which discriminated on grounds of sex nonetheless fell outside the European Union ’ s limited restrictions upon social security discrimination did not prevent this Court from examining for itself the issue of justification. 46. The applicants ’ core submission was that there was a fundamental difference in the level of justification required for a progressive move to eradicate existing sex discrimination in the pension system and the introduction, from 1986, of new discrimination in relation to industrial injury benefits which had existed on equal terms for men and women for almost forty years. The labour market had already changed by 1986, and ten years earlier the Sex Discrimination Act 1976 and the European Community ’ s Equal Treatment Directive 76/207/EEC had rendered discrimination in the field of employment unlawful. The assumption that a woman ’ s working life would be five years shorter than a man ’ s was therefore entirely illegitimate. 2. The Government 47. The Government emphasised that REA was designed to compensate those who had suffered an industrial injury for their loss of earning capacity, and was therefore a benefit linked intrinsically to work. By stopping it at State pensionable age, Parliament had acted in an objectively justified manner by ensuring that a person, whether male or female, would not be eligible both for a State retirement pension and for a benefit for loss of earning capacity. Using pensionable age promoted, in a manner that could easily be understood and administered, and was proportionate, the objective of discontinuing REA for those who were no longer a regular part of the working and earning sector of the population. The Government estimated that, if, following an adverse judgment, it became necessary to reform the REA and RA scheme and reimburse for lost benefits all claimants in the same position as the four applicants, this would cost in the region of GBP 83 million, to which should be added a further GBP one million in administrative costs and GBP 17 million in estimated future payments. 48. The justification for linking social security benefits to pensionable age had been recognised by Article 7 of the Directive (see paragraph 3 8 above). In May 2000 the ECJ had considered and rejected the contention raised by the present applicants that they had been unlawfully discriminated against on the ground of their sex in breach of the Directive (see paragraph 4 1 above). The case-law of the ECJ (see extracts in paragraphs 3 9 -4 1 above) showed this to be a dynamic and evolving area of law in which the ECJ, and the domestic courts bound by its jurisprudence and the Directive, applied a close, proportionality-based analysis to test the continued objective justification for the use of differential ages in access to both State retirement pensions and linked benefits. If the Court were to find a violation in the present case, it would create considerable confusion : the domestic legislation would be lawful under a Directive specifically concerned with sex discrimination in social security, but unlawful under the more general provisions of the Convention. 49. Finally, the social, historical and economic basis for the provision of State retirement pensions at the age of 65 for men and 60 for women, as well as the decision to equalise pensionable age for men and women progressively from 2010 to 2020, involved complex economic and social judgments, in respect of which the State enjoyed a broad margin of appreciation. Before deciding to set the new equal State retirement pension age at 65, the government had considered several options, summarised in the 1993 White Paper (see paragraphs 3 2 -3 4 above), and a full public consultation exercise had been carried out. The clear conclusion reached was that 6 5 was the correct common State retirement pension age for the United Kingdom. In 1995 Parliament had decided to implement the reform in stages because moving towards equality had enormous financial implications both for the State and for individuals, particularly women who had long been expecting to receive a State retirement pension at 60 (see paragraphs 3 4 - 3 5 above). Several Contracting States retained different pension ages for men and women, and a number had chosen to implement a gradual equalisation of those ages (see paragraphs 3 6 -3 7 above). Moreover, the European Community had accepted that its member States must be allowed a period of transition in which to plan and implement the move to equal ages for men and women in relation to State pensionable age ( see paragraph 3 8 above). B. The Court ’ s assessment 1. General principles 50. The applicants complained of a difference in treatment on the basis of sex, which falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14. 51. Article 14 does not prohibit a member State from treating groups differently in order to correct “ factual inequalities ” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (see Case “ relating to certain aspects of the laws on the use of languages in education in Belgium” ( merits), 23 July 1968, pp. 34-35, § 10, Series A no. 6, and Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( see Van Raalte v. the Netherlands, 21 February 1997, § 39, Reports of Judgments and Decisions 1997-I). 52. The scope of this margin will vary according to the circumstances, the subject matter and the background (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998-II ). As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention (see Van Raalte, cited above, § 39, and Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263). On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (see, for example, James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98, and National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997-VII ). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” ( ibid. ). 53. Finally, since the applicants complain about inequalities in a welfare system, the Court underlines that Article 1 of Protocol No. 1 does not include a right to acquire property. It places no restriction on the Contracting States ’ freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a State does decide to create a benefits or pension scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see the admissibility decision in the present case, §§ 54-55, ECHR 2005- X ). 2. Application of these principles to the present case 54. The Court notes that REA is an earnings-related benefit designed to compensate employees or former employees for an impairment of earning capacity due to an accident at work or work-related illness. In or around 1986 it was decided, as a matter of policy, that REA should no longer be paid to claimants who had reached an age at which, even if they had not suffered injury or disease, they would no longer be in paid employment (see paragraphs 2 6 - 30 above). The applicants concede that it was reasonable to aim to stop paying REA to workers after the age when they would, in any event, have retired, and the Court agrees, since the benefit in question is designed to replace or supplement earnings, and is therefore closely connected to employment and working life. 55. The applicants do not accept, however, that in order to achieve this aim it was necessary to adopt as the upper limit the age at which a man or woman becomes entitled to the State retirement pension, since State pensionable age is at present different for men and women. They suggested that a single cut-off age and/or overlapping benefit regulations could have been used instead. 56. The Court observes, however, that a single cut-off age would not have achieved the same level of consistency with the State pension scheme, which is based upon a notional “end of working life” at 60 for women and 65 for men. The benefits to which the applicants refer as having the same starting age for men and women – winter fuel payment, prescription charges and bus passes (see paragraph 4 4 above) – are not inextricably linked to the concept of paid employment or “working life” in the way that REA is. Overlapping benefit regulations, to ensure that any REA received was deducted from the State retirement pension would, moreover, have maintained the impugned difference of treatment, since women would still have become entitled to their pensions and liable to start receiving reduced-rate REA five years before men. 57. The Government, for their part, have explained that the use of the State pension age as the cut-off point for REA made the scheme easy to understand and administer (see paragraph 4 8 above). The Court considers that such questions of administrative economy and coherence are generally matters falling within the margin of appreciation referred to in paragraph 5 2 above. 58. Moreover it finds it significant that, in the present applicants ’ case, the ECJ found that since REA was intended to compensate people of working age for loss of earning capacity due to an accident at work or occupational disease, it was necessary, in order to preserve coherence with the old-age pension scheme, to link the age-limits (see paragraph 4 1 above). While it is true that Article 7(1)(a) of the Directive provides an express exception to the general prohibition on discrimination in social security (see paragraph 3 8 above), the ECJ was called upon, in deciding whether the case fell within the Article 7 exception, to make a judgment as to whether the discrimination in the REA scheme arising from the link to differential pensionable ages was objectively necessary in order to ensure consistency with the pension scheme. In reaching a conclusion on this issue which, while not determinative of the issue under Article 14 of the Convention, is nonetheless of central importance, particular regard should be had to the strong persuasive value of the ECJ ’ s finding on this point. 59. The Court considers, therefore, for the above reasons, that both the policy decision to stop paying REA to persons who would otherwise have retired from paid employment, and the decision to achieve this aim by linking the cut-off age for REA to the notional “end of working life”, or State pensionable age, pursued a legitimate aim and were reasonably and objectively justified. 60. It remains to be examined whether or not the underlying difference in treatment between men and women in the State pension scheme was acceptable under Article 14. 61. Differential pensionable ages were first introduced for men and women in the United Kingdom in 1940, well before the Convention had come into existence, although the disparity persists to the present day (see paragraph 3 2 above). It would appear that the difference in treatment was adopted in order to mitigate financial inequality and hardship arising out of women ’ s traditional unpaid role of caring for the family in the home rather than earning money in the workplace. At their origin, therefore, the differential pensionable ages were intended to correct “ factual inequalities ” between men and women and appear therefore to have been objectively justified under Article 14 of the Convention (see paragraph 5 1 above). 62. It follows that the difference in pensionable ages continued to be justified until such time as social conditions had changed so that women were no longer substantially prejudiced because of a shorter working life. This change, must, by its very nature, have been gradual, and it would be difficult or impossible to pinpoint any particular moment when the unfairness to men caused by differential pensionable ages began to outweigh the need to correct the disadvantaged position of women. Certain indications are available to the Court. Thus, in the 1993 White Paper, the government asserted that the number of women in paid employment had increased significantly, so that whereas in 1967 only 37% of employees were women, the proportion had increased to 50% in 1992. In addition, various reforms to the way in which pension entitlement was assessed had been introduced in 1977 and 1978, to the benefit of women who spent long periods out of paid employment. As of 1986 it was unlawful for an employer to have different retirement ages for men and women (see paragraph 3 3 above). 63. According to the information before the Court, the government made a first, concrete, move towards establishing the same pensionable age for both sexes with the publication of the Green Paper in December 1991. It would, no doubt, be possible to argue that this step could, or should, have been made earlier. However, as the Court has observed, the development of parity in the working lives of men and women has been a gradual process, and one which the national authorities are better placed to assess (see paragraph 5 2 above). Moreover, it is significant that many of the other Contracting States still maintain a difference in the ages at which men and women become eligible for the State retirement pension (see paragraph 3 7 above). Within the European Union, this position is recognised by the exception contained in the Directive (see paragraph 3 8 above). 64. In the light of the original justification for the measure as correcting financial inequality between the sexes, the slowly evolving nature of the change in women ’ s working lives, and in the absence of a common standard amongst the Contracting States (see Petrovic, cited above, §§ 36-43), the Court finds that the United Kingdom cannot be criticised for not having started earlier on the road towards a single pensionable age. 65. Having begun the move towards equality, moreover, the Court does not consider it unreasonable of the government to carry out a thorough process of consultation and review, nor can Parliament be blamed for deciding in 1995 to introduce the reform slowly and in stages. Given the extremely far-reaching and serious implications, for women and for the economy in general, these are matters which clearly fall within the State ’ s margin of appreciation. 3. Conclusion 66. In conclusion, the Court finds that the difference in State pensionable age between men and women in the United Kingdom was originally intended to correct the disadvantaged economic position of women. It continued to be reasonably and objectively justified on this ground until such time as social and economic changes removed the need for special treatment for women. The respondent State ’ s decisions as to the precise timing and means of putting right the inequality were not so manifestly unreasonable as to exceed the wide margin of appreciation allowed it in such a field (see paragraph 5 2 above). Similarly, the decision to link eligibility for REA to the pension system was reasonably and objectively justified, given that this benefit is intended to compensate for reduced earning capacity during a person ’ s working life. There has not, therefore, been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 in this case. 67. The above finding renders it unnecessary for the Court to consider separately the issues relating to the victim status of the third, fourth and fifth applicants (see paragraph 11 above). | The Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention taken together with Article 1 (protection of property) of Protocol No. 1. It found that the difference in State pensionable age between men and women in the United Kingdom was originally intended to correct the disadvantaged economic position of women. It continued to be reasonably and objectively justified on that ground until such time that social and economic changes removed the need for special treatment for women. The United Kingdom Government’s decisions as to the precise timing and means of putting right the inequality were not manifestly unreasonable. Similarly, the decision to link eligibility for REA to the pension system was reasonably and objectively justified, given that the benefit was intended to compensate for reduced earning capacity during a person’s working life. |
846 | null | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICEGenerally on signals intelligence Generally on signals intelligence Generally on signals intelligence 14. Signals intelligence can be defined as intercepting, processing, analysing and reporting intelligence from electronic signals. These signals may be processed to text, images and sound. The intelligence collected through these procedures may concern both the content of a communication and its related communications data (the data describing, for instance, how, when and between which addresses the electronic communication is conducted). The intelligence may be intercepted over the airways – usually from radio links and satellites – and from cables. Whether a signal is transmitted over the airways or through cables is controlled by the communications service providers, that is, the telecom, internet, cable and other such companies which provide various forms of electronic transfer of information. A great majority of the traffic relevant for signals intelligence is cable-based. The term “communications bearers” (or “signal carriers”) refers to the medium used for transmitting one or more signals. Unless indicated below, the regulation of Swedish signals intelligence does not distinguish between the content of communications and their communications data or between airborne and cable-based traffic. 15. Foreign intelligence is, according to the Foreign Intelligence Act ( Lagen om försvarsunderrättelseverksamhet; 2000:130), conducted in support of Swedish foreign, defence and security policy, and in order to identify external threats to the country. The activities should also assist in Sweden’s participation in international security cooperation. Intelligence under the Act may only be conducted in relation to foreign circumstances (section 1(1)). This does not preclude that some of the foreign circumstances may have ramifications in Sweden, for example, when following the espionage operations of a foreign power targeting Sweden (preparatory works to amended legislation on foreign intelligence, prop. 2006/07:63, p. 43). 16. The Government determines the direction of the activities; it also decides which authorities may issue more detailed directives and which authority is to conduct the intelligence activities (section 1(2) and 1(3)). The Government issues general tasking directives annually. Foreign intelligence may not be conducted for the purpose of solving tasks in the area of law enforcement or crime prevention, which come under the mandate of the Police Authority, the Security Police and other authorities and which are regulated by different legislation. However, authorities that conduct foreign intelligence may support authorities dealing with law enforcement or crime prevention (section 4). Examples of such support are cryptanalysis and technical help on information security (preparatory works to amended legislation on foreign intelligence, prop. 2006/07:63, p. 136). 17. The collection of electronic signals is one form of foreign intelligence. It is regulated by the Signals Intelligence Act ( Lagen om signalspaning i försvarsunderrättelseverksamhet; 2008:717), which entered into force on 1 January 2009. Several amendments were made to the Act on 1 December 2009, 1 January 2013, 1 January 2015 and 15 July 2016. Supplementary provisions are found in the Signals Intelligence Ordinance ( Förordningen om signalspaning i försvarsunderrättelseverksamhet; 2008:923). The legislation authorises the National Defence Radio Establishment ( Försvarets radioanstalt; henceforth “the FRA”) to conduct signals intelligence (section 2 of the Ordinance compared to section 1 of the Act). 18. During signals intelligence all cable-based cross-border communications are transferred to certain points of collection. No information is stored at these points and a limited amount of data traffic is transferred to the FRA by communications bearers (parliamentary committee report SOU 2016:45, p. 107). 19. The FRA may conduct signals intelligence within the area of foreign intelligence only as a result of a detailed tasking directive issued by the Government, the Government Offices, the Armed Forces or, as from January 2013, the Security Police and the National Operative Department of the Police Authority ( Nationella operativa avdelningen i Polismyndigheten; hereafter “NOA”) (sections 1(1) and 4(1) of the Act) in accordance with the issuer’s precise intelligence requirements. However, the direction of the FRA’s “development activities” may be determined solely by the Government (section 4(2)). A detailed tasking directive determines the direction of the intelligence activities and may concern a certain phenomenon or situation, but it may not solely target a specific natural person (section 4(3)). 20. The mandate of the Security Police and the NOA to issue detailed tasking directives aims to improve these authorities’ ability to obtain data about foreign circumstances at a strategic level concerning international terrorism and other serious international crime that may threaten essential national interests. At the time of introduction of the new rules, the Government stated in the preparatory works (prop. 2011/12:179, p. 19) that the mandate is in accordance with the prohibition on conducting signals intelligence for the purpose of solving tasks in the area of law enforcement or crime prevention. 21. According to the Foreign Intelligence Ordinance ( Förordningen om försvarsunderrättelseverksamhet; 2000:131), a detailed tasking directive shall include information about (i) the issuing authority, (ii) the part of the Government’s annual tasking directive it concerns, (iii) the phenomenon or situation intended to be covered, and (iv) the need for intelligence on that phenomenon or situation (section 2a). B. Scope of application of signals intelligence 22. The purposes for which electronic signals may be collected as part of foreign intelligence are specified in the Signals Intelligence Act (section 1 (2)) which provides that signals intelligence may be conducted only to survey: 1. external military threats to the country; 2. conditions for Swedish participation in international peacekeeping or humanitarian missions or threats to the safety of Swedish interests in the performance of such operations; 3. strategic circumstances concerning international terrorism or other serious cross-border crime that may threaten essential national interests; 4. the development and proliferation of weapons of mass destruction, military equipment and other similar specified products; 5. serious external threats to society’s infrastructure; 6. foreign conflicts with consequences for international security; 7. foreign intelligence operations against Swedish interests; and 8. the actions or intentions of a foreign power that are of substantial importance for Swedish foreign, security or defence policy. 23. These eight purposes are further elaborated upon in the preparatory works to the legislation (prop. 2008/09:201, pp. 108-109): “The purposes for which permits to conduct signals intelligence may be granted are listed in eight points. The first point concerns external military threats to the country. Military threats include not only imminent threats, such as threats of invasion, but also phenomena that may in the long term develop into security threats. Consequently, the wording covers the surveying of military capabilities and capacities in our vicinity. The second point comprises both surveying necessary to provide an adequate basis for a decision whether to participate in international peacekeeping or humanitarian missions and surveying performed during ongoing missions concerning threats to Swedish personnel or other Swedish interests. The third point refers to strategic surveying of international terrorism or other serious cross-border crime, such as drug or human trafficking of such severity that it may threaten significant national interests. The task of signals intelligence in relation to such activities is to survey them from a foreign and security policy perspective; the intelligence needed to combat the criminal activity operatively is primarily the responsibility of the police. The fourth point addresses the need to use signals intelligence to follow, among other things, activities relevant to Sweden’s commitments in regard to non-proliferation and export control, even in cases where the activity does not constitute a crime or contravenes international conventions. The fifth point includes, among other things, serious IT-related threats emanating from abroad. That the threats should be of a serious nature means that they, for example, should be directed towards vital societal systems for energy and water supply, communication or monetary services. The sixth point refers to the surveying of such conflicts between and in other countries that may have consequences for international security. It may concern regular acts of war between States but also internal or cross-border conflicts between different ethnic, religious or political groups. The surveying of the conflicts includes examining their causes and consequences. The seventh point signifies that intelligence activities conducted against Swedish interests can be surveyed through signals intelligence. The eighth point provides the opportunity to conduct signals intelligence against foreign powers and their representatives in order to survey their intentions or actions that are of substantial importance to Swedish foreign, security or defence policy. Such activities may relate only to those who represent a foreign power. Through the condition “substantial importance” it is emphasised that it is not sufficient that the phenomenon is of general interest but that the intelligence should have a direct impact on Swedish actions or positions in various foreign, security or defence policy matters. ...” 24. The FRA may collect electronic signals also in order to monitor changes in the international signals environment, technical advances and signals protection and to develop the technology needed for signals intelligence (section 1(3)). This is regarded as “development activities” and, according to the relevant preparatory works (prop. 2006/07:63, p. 72), they do not generate any intelligence reports. Signals intercepted in the context of the FRA’s development activities do not interest the authorities for the data they might contain but only for the possibility to analyse the systems and routes through which information is transmitted. The FRA may share experiences gained on technological issues with other authorities. Development activities usually do not focus on communications between individuals, although information on individuals’ identities may be intercepted. 25. Signals intelligence conducted on cables may only concern signals crossing the Swedish border in cables owned by a communications service provider (section 2). Communications between a sender and receiver within Sweden may not be intercepted, regardless of whether the source is airborne or cable-based. If such signals cannot be separated at the point of collection, the recording of or notes about them shall be destroyed as soon as it becomes clear that such signals have been collected (section 2a). 26. Interception of cable-based signals is automated and must only concern signals that have been identified through the use of selectors (or “search terms”). Such selectors are also used to identify signals over the airways, if the procedure is automated. The selectors must be formulated in such a way that the interference with personal integrity is limited as far as possible. Selectors directly relating to a specific natural person may only be used if this is of exceptional importance for the intelligence activities (section 3). 27. The preparatory works to the Signals Intelligence Act (prop. 2006/07:63, p. 90) clarify that the exceptional importance requirement under section 3 is needed in view of the fact that the use of search terms that are attributable to a particular individual, such as personal names, telephone numbers, email or IP addresses, involves special risks from a privacy protection perspective. The use of such search terms should only be considered under special conditions and should be preceded by a thorough necessity assessment, notably, as to whether the information which can thereby be obtained is of such importance that it justifies the measure. As an example, the text refers to the following hypothetical situation: a national crisis caused by an IT attack against systems of crucial importance to society where immediate action needs to be taken to identify the individual actors. 28. After the signals have been intercepted they are processed, which means that they are, for example, subjected to cryptanalysis or translation. Then the information is analysed and reported to the authority that gave the FRA the mission to collect the intelligence in question. 29. The process has been described by the respondent Government as comprising six stages, as follows: 1. a choice is made of segments of the signals intelligence environment that are most relevant; 2. selectors are applied automatically to signals in the chosen segments in order to intercept and gradually reduce what is collected; 3. the data is further processed through automatic and manual means using, among others, cryptoanalysis, structuring and language translation; 4. the processed information is analysed by an analyst in order to identify intelligence within; 5. a report is written and disseminated to selected recipients of foreign intelligence; and 6. feedback on the use and effects of the intelligence provided is requested and shared with those involved in the process. C. Authorisation of signals intelligence 30. For all signals intelligence, including the development activities, the FRA must apply for a permit to the Foreign Intelligence Court ( Försvarsunderrättelsedomstolen ). The application shall contain the mission request that the FRA has received, with information on the relevant detailed tasking directive and the need for the intelligence sought. Also, the communications bearers to which the FRA requires access have to be specified, along with the selectors or categories of selectors that will be used. Finally, the application must state the duration for which the permit is requested (section 4a). 31. A permit may only be granted if the mission is in accordance with the provisions of the Foreign Intelligence Act and the Signals Intelligence Act, if the purpose of the interception of signals cannot be met in a less interfering manner, if the mission can be expected to yield information whose value is clearly greater than the possible interference with personal integrity, if the selectors or categories of selectors are in accordance with the Signals Intelligence Act and if the application does not concern solely a specific natural person (section 5). 32. If granted, the permit shall specify the mission for which signals intelligence may be conducted, the bearers to which the FRA will have access, the selectors or categories of selectors that may be used, the duration of the permit and other conditions necessary to limit the interference with personal integrity (section 5a). 33. The FRA itself may decide to grant a permit, if the application for a permit from the Foreign Intelligence Court might cause delay or other inconveniences of essential importance for one of the specified purposes of the signals intelligence. If the FRA grants a permit, it has to report to the court immediately and the court shall without delay decide in the matter. The court may revoke or amend the permit (section 5b). 34. The composition of the Foreign Intelligence Court and its activities are regulated by the Foreign Intelligence Court Act ( Lagen om Försvarsunderrättelsedomstol; 2009:966). The court consists of one president, one or two vice-presidents and two to six other members. The president is a permanent judge, nominated by the Judges Proposals Board ( Domarnämnden ) and appointed by the Government. The vice-presidents, who must be legally trained and have previous experience as judges, and the other members, who are required to have special expertise of relevance for the court’s work, are appointed by the Government on four-year terms. The applications for signals intelligence permits are discussed during hearings, which may be held behind closed doors, if it is clear that information classified as secret would be exposed as a result of a public hearing. During the court’s examination, the FRA as well as a privacy protection representative ( integritetsskyddsombud ) are present. The representative, who does not represent any particular person but the interests of individuals in general, monitors integrity issues and has access to the case file and may make statements. Privacy protection representatives are appointed by the Government for a period of four years and must be or have been permanent judges or attorneys. The court may hold a hearing and decide on an application without the presence of a representative only if the case is of such urgency that a delay would severely compromise the purpose of the application. The court’s decisions are final. D. The duration of signals intelligence 35. A permit may be granted for a specific period of time, maximum six months. An extension may, after a renewed examination, be granted for six months at a time (Signals Intelligence Act, section 5a). E. Procedures to be followed for storing, accessing, examining, using and destroying the intercepted data 36. The Foreign Intelligence Inspectorate ( Statens inspektion för försvarsunderrättelseverksamheten (SIUN); see further paragraphs 50-54 below) oversees access to the communications bearers. Communications service providers are obliged to transfer cable-based signals crossing the Swedish borders to “collaboration points” agreed upon with the Inspectorate. The Inspectorate, in turn, provides the FRA with access to bearers in so far as such access is covered by a signals intelligence permit and, in so doing, implements the permits issued by the Foreign Intelligence Court (Chapter 6, section 19a of the Electronic Communications Act ( Lagen om elektronisk kommunikation; 2003:389)). The Council on Legislation ( Lagrådet ), the body giving opinions on request by the Government or a Parliamentary committee on certain draft bills, has expressed the view that an interference with private life and correspondence already arises at this point, because of the State obtaining access to the telecommunications (prop. 2006/07:63, p. 172). 37. According to the Signals Intelligence Act, intercepted data must be destroyed immediately by the FRA if it (i) concerns a specific natural person and lacks importance for the signals intelligence, (ii) is protected by constitutional provisions on secrecy for the protection of anonymous authors and media sources, (iii) contains information shared between a suspect and his or her legal counsel and is thus protected by attorney-client privilege, or (iv) involves information given in a religious context of confession or individual counselling, unless there are exceptional reasons for examining the information (section 7). 38. If communications have been intercepted between a sender and receiver who are both in Sweden, despite the prohibition on such interception, they shall be destroyed as soon as the domestic nature of the communications has become evident (section 2a). 39. If a permit urgently granted by the FRA (see paragraph 21 above) is revoked or amended by the Foreign Intelligence Court, all intelligence collected which is thereby no longer authorised must be immediately destroyed (section 5b(3)). 40. The FRA Personal Data Processing Act ( Lagen om behandling av personuppgifter i Försvarets radioanstalts försvarsunderrättelse- och utvecklingsverksamhet; 2007:259) contains provisions on the treatment of personal data within the area of signals intelligence. The Act entered into force on 1 July 2007, with amendments effective from 30 June 2009, 15 February 2010 and 1 March 2018. The purpose of the Act is to protect against violations of personal integrity (Chapter 1, section 2). The FRA shall ensure, inter alia, that personal data is collected only for certain expressly stated and justified purposes. Such purpose is either determined by the direction of the foreign intelligence activities through a detailed tasking directive or by what is necessary in order to follow changes in the signals environment, technical advances and signals protection. Also, the personal data treated has to be adequate and relevant in relation to the purpose of the treatment. No more personal data than what is necessary for that purpose may be processed. All reasonable efforts have to be made to correct, block and obliterate personal data that is incorrect or incomplete (Chapter 1, sections 6, 8 and 9). 41. Personal data may not be processed solely because of what is known of a person’s race or ethnicity, political, religious or philosophical views, membership of a union, health or sexual life. If, however, personal data is treated for a different reason, this type of information may be used if it is absolutely necessary for the treatment. Information about a person’s physical appearance must always be formulated in an objective way with respect for human dignity. Intelligence searches may only use the above-mentioned personal indicators as selectors if this is absolutely necessary for the purpose of the search (Chapter 1, section 11). 42. Personnel at the FRA who process personal data go through an official security clearance procedure and are subject to confidentiality with regard to data to which secrecy applies. They could face criminal sanctions if tasks relating to the processing of personal data are mismanaged (Chapter 6, section 2). 43. Personal data that has been subjected to automated processing is to be destroyed as soon as it is no longer needed (Chapter 6, section 1). 44. Further provisions on the treatment of personal data are laid down in the FRA Personal Data Processing Ordinance ( Förordningen om behandling av personuppgifter i Försvarets radioanstalts försvars underrättelse- och utvecklingsverksamhet; 2007:261). It provides, inter alia, that the FRA may keep databases for raw material containing personal data. Raw material is unprocessed information which has been collected through automated treatment. Personal data in such databases shall be destroyed within one year from when it was collected (section 2). F. Conditions for communicating the intercepted data to other parties 45. The intelligence collected is to be reported to the authorities concerned, as determined under the Foreign Intelligence Act (Signals Intelligence Act, section 8). 46. The Government Offices, the Armed Forces, the Security Police, the NOA, the Inspectorate of Strategic Products ( Inspektionen för strategiska produkter ), the Defence Material Administration ( Försvarets materialverk ), the Defence Research Agency ( Totalförsvarets forskningsinstitut ), the Civil Contingencies Agency ( Myndigheten för samhällsskydd och beredskap ) and the Swedish Customs ( Tullverket ) may have direct access to completed intelligence reports to the extent the FRA so decides (section 9 of the FRA Personal Data Processing Ordinance). However, to date, no decisions permitting direct access have been taken by the FRA. 47. The FRA may also grant the Security Police and the Armed Forces direct access to data which constitute analysis results in a data collection for analyses and which is needed for the authorities to be able to make strategic assessments of the terrorist threat against Sweden and Swedish interests (Chapter 1, section 15 of the FRA Personal Data Processing Act, and section 13a of the Ordinance). 48. According to the preparatory works (prop 2017/18:36), the above-mentioned access is given within the framework of cooperation between the FRA, the Security Police and the Armed Forces in a working group called the National Centre for Assessment of Terrorist Threats ( Nationellt centrum för terrorhotbedömning; “NCT”) where a number of analysts from the three authorities work together and write reports containing strategic assessments of terrorist threats. With the FRA’s permission and as long as the data is relevant for such terrorist threat assessments, the NCT analysts have direct access to “analysis results” contained in the FRA databases. The analysts do not, however, have direct access to the FRA’s databases to conduct their own free searches. Furthermore, while the information made available to the analysts through direct access may contain personal data, the assessments made by the NCT are of a strategic, general nature and are not, as such, directed at individual persons. 49. Personal data may be communicated to other States or international organisations only if this is not prevented by secrecy and if necessary for the FRA to perform its activities within international defence and security cooperation. The Government may adopt rules or decide in a specific case to allow such communication of personal data also in other cases, where necessary for the activities of the FRA (Chapter 1, section 17 of the FRA Personal Data Processing Act). The FRA may disclose personal data to a foreign authority or an international organisation if it is beneficial for the Swedish government ( statsledningen ) or Sweden’s comprehensive defence strategy ( totalförsvaret ); information so communicated must not harm Swedish interests (section 7 of the FRA Personal Data Processing Ordinance). G. Supervision of the implementation of signals intelligence 50. The Foreign Intelligence Act (section 5) and the Signals Intelligence Act (section 10) provide that an authority is to oversee the foreign intelligence activities in Sweden and verify that the FRA’s activities are in compliance with the provisions of the Signals Intelligence Act. The supervisory authority – the Foreign Intelligence Inspectorate – is, among other things, tasked with monitoring the implementation of the Foreign Intelligence Act and the associated Ordinance and reviewing whether foreign intelligence activities are performed in compliance with the applicable directives (section 4 of the Foreign Intelligence Inspectorate Instructions Ordinance ( Förordningen med instruktion för Statens inspektion för försvarsunderrättelseverksamheten; 2009:969)). It also reviews compliance with the Signals Intelligence Act by examining in particular the selectors used, the destruction of intelligence and the communication of reports; if an inspection reveals that a particular intelligence collection is incompatible with a permit, the Inspectorate may decide that the operation shall cease or that the intelligence shall be destroyed (section 10 of the Signals Intelligence Act). The FRA shall report to the Inspectorate the selectors which directly relate to a specific natural person (section 3 of the Signals Intelligence Ordinance). 51. The Foreign Intelligence Inspectorate is led by a board whose members are appointed by the Government for terms of at least four years. The president and the vice-president shall be or have been permanent judges. Other members are selected from candidates proposed by the party groups in the Parliament (section 10 (3) of the Signals Intelligence Act). 52. Any opinions or suggestions for measures arising from the Inspectorate’s inspections shall be forwarded to the FRA, and if necessary also to the Government. The Inspectorate also submits annual reports on its inspections to the Government (section 5 of the Foreign Intelligence Inspectorate Instructions Ordinance), which are made available to the public. Furthermore, if the Inspectorate notices potential crimes, it shall report the matter to the Prosecution Authority ( Åklagarmyndigheten ), and, if deficiencies are discovered that may incur liability for damages for the State, a report shall be submitted to the Chancellor of Justice ( Justitiekanslern ). A report may also be submitted to the Data Protection Authority ( Datainspektionen ), which is the supervisory authority on the treatment of personal data by the FRA (section 15). 53. From the establishment of the Inspectorate in 2009 until 2017 the Inspectorate conducted 102 inspections in total. Those resulted in 15 opinions submitted to the FRA and one to the Government. No inspections have revealed reasons to cease an intelligence collection or to destroy the results. According to the Inspectorate’s annual reports, which contain brief descriptions of the inspections, those have included numerous detailed examinations of the selectors used, the destruction of intelligence, the communication of reports, the treatment of personal data and the overall compliance with the legislation, directives and permits relevant to the signals intelligence activities. For instance, between 2010 and 2014 the use of selectors was inspected on seventeen occasions, which led to one opinion and a proposal for changes to the FRA’s processing routines. During the same period the destruction of data related to signals intelligence was audited on nine occasions. Those also resulted in one opinion, in 2011, inviting the FRA to amend its internal regulations, which it did the same year. During 2011 the Inspectorate also verified whether the FRA was conducting data collection for other countries in accordance with the law, which did not lead to any opinion being issued. An inspection in 2014 concerned a general review of the FRA’s cooperation with other States and international organisations in intelligence matters. It did not give rise to any opinion or suggestion to the FRA. In 2015 and 2016 an overall review to assess compliance with the limitations stated in permits issued by the Foreign Intelligence Court resulted in one observation. In 2016 and 2017 the Inspectorate carried out a detailed inspection of the treatment by the FRA of personal data. The inspection concerned the processing of sensitive personal data in connection with strategic circumstances relating to international terrorism and other serious cross-border crime threatening significant national interests. The inspection did not give rise to any opinion or suggestion. However, during that year, one opinion was submitted to the Government following an inspection of whether the FRA’s intelligence activities complied with the tasking directives given. During the years 2009-2017 the Inspectorate found reason to make a report to another authority – the Data Protection Authority – on one occasion, concerning the interpretation of a legal provision. In its annual reports, the Inspectorate has noted that it has been given access to all the information necessary for its inspections. 54. The supervisory activities of the Foreign Intelligence Inspectorate have been audited by the National Audit Office ( Riksrevisionen ), a body answerable to Parliament. In a report published in 2015 the Office noted that the FRA had routines in place for handling the Inspectorate’s opinions and that the supervision helped develop the activities of the FRA. Suggestions were dealt with in a serious manner and, when called for, gave rise to reforms. With the exception of one case when the FRA referred the matter to the Government, the FRA took the action decided by Inspectorate. At the same time the Office criticised the Inspectorate’s lack of documentation of inspections and the fact that there were no clearly specified goals for the inspections. 55. Within the FRA there is a Privacy Protection Council tasked with continuously monitoring measures taken to ensure protection of personal integrity. The members are appointed by the Government. The Council reports its observations to the FRA management or, if the Council finds reasons for it, to the Inspectorate (section 11 of the Signals Intelligence Act). 56. Further provisions on supervision are found in the FRA Personal Data Processing Act. The FRA shall appoint one or several data protection officers and report the appointment to the Data Protection Authority (Chapter 4, section 1). The data protection officer is tasked with independently monitoring that the FRA treats personal data in a legal and correct manner and point out any deficiencies. If deficiencies are suspected and no correction is made, a report shall be submitted to the Data Protection Authority (Chapter 4, section 2). 57. The Data Protection Authority, which is an authority under the Government, has, on request, access to the personal data that is processed by the FRA and to documentation on the treatment of personal data along with the security measures taken in this regard as well as access to the facilities where personal data is processed (Chapter 5, section 2). If the Authority finds that personal data is or could be processed illegally, it shall try to remedy the situation by communicating its observations to the FRA (Chapter 5, section 3). It may also apply to the Administrative Court ( förvaltningsrätten ) in Stockholm to have illegally processed personal data destroyed (Chapter 5, section 4). According to copies of an email exchange of April 2019 between the applicant and the Administrative Court, there was no trace in that court’s electronic records of the latter possibility having been used by the Data Protection Authority. H. Notification of secret surveillance measures 58. If selectors directly related to a specific natural person have been used, he or she is to be notified by the FRA, according to the Signals Intelligence Act. The notification shall contain information on the date and purpose of the measures. Such notification shall be given as soon as this can be done without detriment to the foreign intelligence activities, but no later than one month after the signals intelligence mission has been concluded (section 11a). 59. However, the notification may be delayed if secrecy so demands, in particular defence secrecy or secrecy for the protection of international relations. If, due to secrecy considerations, no notification has been given within a year from the conclusion of the mission, the person does not have to be notified. Furthermore, notification shall not be given if the measures solely concern the conditions of a foreign power or the relationship between foreign powers (section 11b). 60. In its 2010 report, the Data Protection Authority noted, inter alia, that the procedure for notification to individuals had never been used by the FRA, due to secrecy considerations (see paragraph 75 below). I. Remedies 61. The Signals Intelligence Act provides that the Foreign Intelligence Inspectorate, at the request of an individual, must investigate if his or her communications have been intercepted through signals intelligence and, if so, verify whether the interception and treatment of the information have been in accordance with the law. The Inspectorate shall notify the individual that such an investigation has been carried out (section 10a). A request can be made by legal and natural persons regardless of nationality and residence. During the period 2010-2017, 132 requests were handled and no unlawfulness was established. In 2017, ten such requests were processed; in 2016 the number was 14. The Inspectorate’s decision following a request is final. 62. Under the FRA Personal Data Processing Act, the FRA is also required to provide information upon request. Once per calendar year, an individual may demand information on whether personal data concerning him or her is being or has been processed. If so, the FRA must specify what information on the individual is concerned, from where it was collected, the purpose of the treatment and to which recipients or categories of recipients the personal data is or was reported. The information is normally to be given within one month from the request (Chapter 2, section 1). However, this right to information does not apply if disclosure is prevented by secrecy considerations (Chapter 2, section 3). 63. Following a request from an individual who has had personal data registered, the FRA shall promptly correct, block or destroy such data that has not been processed in accordance with law. The FRA shall also notify any third party who has received the data, if the individual so requests or if substantial harm or inconvenience could be avoided through a notification. No such notification has to be given if it is impossible or would involve a disproportionate effort (Chapter 2, section 4). 64. The FRA’s decisions on disclosure and corrective measures in regard to personal data may be appealed against to the Administrative Court in Stockholm (Chapter 6, section 3). According to copies of an email exchange of April 2019 between the applicant and the Administrative Court, there was no trace in that court’s electronic records of that possibility having been used. 65. The State is liable for damages following a violation of personal integrity caused by treatment of personal data not in accordance with the FRA Personal Data Processing Act (Chapter 2, section 5). A request for damages shall be submitted to the Chancellor of Justice. 66. In addition to the above remedies, laid down in the legislation relating to signals intelligence, Swedish law provides for a number of other means of scrutiny and complaints mechanisms. The Parliamentary Ombudsmen ( Justititeombudsmannen ) supervise the application of laws and regulations in public activities; courts and authorities are obliged to provide information and opinions at the request of the Ombudsmen (Chapter 13, section 6 of the Instrument of Government – Regeringsformen ), including access to minutes and other documents. The Ombudsmen shall ensure, in particular, that the courts and authorities observe the provisions of the Instrument of Government on objectivity and impartiality and that citizens’ fundamental rights and freedoms are not encroached upon in public activities (section 3 of the Parliamentary Ombudsmen Instructions Act – Lagen med instruktion för Riksdagens ombudsmän; 1986:765). The supervision, under which the Foreign Intelligence Court and the FRA come, is conducted by means of examining complaints from the public and through inspections and other investigations (section 5). The examination is concluded by a decision in which, although not legally binding, the opinion of the Ombudsman is given as to whether the court or authority has contravened the law or otherwise taken a wrongful or inappropriate action; the Ombudsman may also initiate criminal or disciplinary proceedings against a public official who has committed a criminal offence or neglected his or her duty in disregarding the obligations of the office (section 6). 67. With a mandate similar to the Parliamentary Ombudsmen, the Chancellor of Justice scrutinises whether officials in public administration comply with laws and regulations and otherwise fulfil their obligations (section 1 of the Chancellor of Justice Supervision Act – Lagen om justitiekanslerns tillsyn; 1975:1339). The Chancellor does so by examining individual complaints or conducting inspections and other investigations, which could be directed at, for instance, the Foreign Intelligence Court and the FRA. According to copies of an email exchange of April 2019 between the applicant and the office of the Chancellor of Justice, twelve such complaints were received in 2008 and one in 2013. Following examination, none of those had been judged to require action. 68. At the request of the Chancellor, courts and authorities are obliged to provide information and opinions as well as access to minutes and other documents (sections 9 and 10). The decisions of the Chancellor of Justice are similar in nature to the decisions of the Parliamentary Ombudsmen, including their lack of legally binding power. By tradition, however, the opinions of the Chancellor and the Ombudsmen command great respect in Swedish society and are usually followed (see Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 118, ECHR 2006-VII). The Chancellor has the same power as the Ombudsmen to initiate criminal or disciplinary proceedings (sections 5 and 6). 69. The Chancellor of Justice is also authorised to determine complaints and claims for damages directed against the State, including compensation claims for alleged violations of the Convention. The Supreme Court and the Chancellor of Justice have developed precedents in recent years, affirming that it is a general principle of law that compensation for Convention violations can be ordered without direct support in Swedish statute to the extent that Sweden has a duty to provide redress to victims of Convention violations through a right to compensation for damages (see Lindstrand Partners Advokatbyrå AB v. Sweden, no. 18700/09, §§ 58-62 and 67, 20 December 2016, with further references). On 1 April 2018, through the enactment of a new provision – Chapter 3, section 4 – of the Tort Liability Act ( Skadeståndslagen; 1972:207), the right to compensation for violations of the Convention was codified. 70. In addition to its above-mentioned supervisory functions under the Foreign Intelligence Inspectorate Instructions Ordinance and the FRA Personal Data Processing Act (see paragraphs 52, 56 and 57 above), the Data Protection Authority is generally entrusted with protecting individuals against violations of their personal integrity through the processing of personal data, under the Act with Supplementary Provisions to the EU General Data Protection Regulation ( Lagen med kompletterande bestämmelser till EU:s dataskyddsförordning ) which entered into force on 25 May 2018, the same day as the new EU regulation it supplements (see paragraph 94 below). In regard to the signals intelligence conducted by the FRA, the Personal Data Act ( Personuppgiftslagen; 1998:204) continues to apply, although it is otherwise replaced by the new EU Regulation and the supplementary act. It gives the Data Protection Authority the same general supervisory task. In performing this task, the Authority may receive and examine individual complaints. J. Secrecy at the FRA 71. The Public Access to Information and Secrecy Act ( Offentlighets ‑ och sekretesslagen; 2009:400) contains a specific provision on the FRA’s signals intelligence activities. Secrecy applies to information on an individual’s personal or economic circumstances, unless it is evident that the information can be disclosed without the individual concerned or any other person closely related to him or her being harmed. The presumption is for secrecy (Chapter 38, section 4). 72. According to the Act, secrecy also generally applies to foreign intelligence activities in regard to information concerning another State, international organisation, authority, citizen or legal person in another State, if it can be presumed that a disclosure will interfere with Sweden’s international relations or otherwise harm the country (Chapter 15, section 1). 73. Secrecy further applies to information on activities related to the defence of the country or the planning of such activities or to information that is otherwise related to the country’s comprehensive defence strategy, if it can be presumed that a disclosure will harm the country’s defence or otherwise endanger national security (Chapter 15, section 2). 74. Information which is protected by secrecy under the Public Access to Information and Secrecy Act may not be disclosed to a foreign authority or an international organisation unless (i) such disclosure is permitted by an express legal provision (cf. section 7 of the FRA Personal Data Processing Ordinance, paragraph 34 above), or (ii) the information in an analogous situation may be communicated to a Swedish authority and the disclosing authority finds it evident that the communication of the information to the foreign authority or the international organisation is consistent with Swedish interests (Chapter 8, section 3 of the Act). K. The reports of the Data Protection Authority 75. On 12 February 2009 the Government ordered the Data Protection Authority to examine the handling of personal data at the FRA from an integrity perspective. In its report, published on 6 December 2010, the Authority stated that its conclusions were overall positive. Issues relating to the processing of personal data and to personal integrity were given serious consideration by the FRA and a considerable amount of time and resources were spent on creating routines and educating its personnel in order to minimise the risk of unwarranted interferences with personal integrity. Moreover, no evidence had been found which indicated that the FRA was handling personal data for purposes not authorised by the legislation in force. However, the Authority noted, inter alia, that there was a need to improve the methods for separating domestic and cross-border communications. Even if the FRA had implemented mechanisms in that area, there was no guarantee that domestic communications were never intercepted, and, although the occasions had been very few, such communications had in fact been intercepted. The Authority further noted that the procedure for notification to individuals (paragraphs 58-60 above) had never been used by the FRA, due to secrecy considerations. 76. A second report was issued by the Authority on 24 October 2016. Again, the Authority found no evidence that personal data had been collected for other purposes than those stipulated for the signals intelligence activities. It also noted that the FRA continuously reviewed whether data intercepted was still needed for those purposes. A similar review was made concerning the communications bearers from which the FRA obtained intelligence. Moreover, there was nothing to indicate that the provisions on destruction of personal data had been disregarded (see paragraphs 37-39 above). However, the FRA was criticised for not adequately monitoring logs used to detect unwarranted use of personal data, a shortcoming that had been pointed out already in 2010. L. The report of the Signals Intelligence Committee 77. On 12 February 2009 the Government also decided to appoint a committee predominantly composed of members of parliament, the Signals Intelligence Committee ( Signalspaningskommittén ), with the task of monitoring the signals intelligence conducted by the FRA in order to examine the implications for personal integrity. The report was presented on 11 February 2011 ( Uppföljning av signalspaningslagen; SOU 2011:13). The Committee’s examination focused primarily on signals intelligence conducted over the airways, as such activities on cable-based traffic had not yet commenced on a larger scale. 78. The Committee concluded that concerns of personal integrity were taken seriously by the FRA and formed an integral part of the development of its procedures. It noted, however, that there were practical difficulties in separating domestic cable-based communications from those crossing the Swedish border. Any domestic communications that were not separated at the automated stage were instead separated manually at the processing or analysing stage. The Committee further observed that the selectors used for communications data were less specific than those used for interception of the content of a communication and that, consequently, a larger number of individuals could have such data stored by the FRA. 79. Another finding in the report was that the FRA’s development activities (see paragraph 24 above) could lead to non-relevant communications being intercepted and possibly read or listened to by FRA personnel. However, the Committee noted that the development activities were directly essential for the FRA’s ability to conduct signals intelligence. Moreover, information obtained through the development activities could be used in regular intelligence activities only if such use conformed with the purposes established by law and the relevant tasking directives issued for the signals intelligence. 80. Like the Data Protection Authority, the Committee pointed out that, in reality, the obligation on the FRA to notify individuals who had been directly and personally subjected to secret surveillance measures was very limited due to secrecy; it concluded therefore that this obligation served no purpose as a guarantee for legal certainty or against integrity interferences. The Committee found, however, that, in particular, the authorisation procedure before the Foreign Intelligence Court, in deciding on permits to conduct signals intelligence measures (see paragraphs 30-34 above), and the supervisory functions performed by the Foreign Intelligence Inspectorate (see paragraphs 36 and 50-54 above) and the Privacy Protection Council (see paragraph 55 above) provided important protection for individuals’ personal integrity. It noted, in this respect, that, although the Privacy Protection Council formed part of the FRA, it acted in an independent manner. relevant INTERNATIONAL lawThe United Nations The United Nations The United Nations 81. Resolution no. 68/167, on The Right to Privacy in the Digital Age, adopted by the General Assembly on 18 December 2013, reads as follows: “The General Assembly, ... 4. Calls upon all States: ... ( c ) To review their procedures, practices and legislation regarding the surveillance of communications, their interception and the collection of personal data, including mass surveillance, interception and collection, with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law; ( d ) To establish or maintain existing independent, effective domestic oversight mechanisms capable of ensuring transparency, as appropriate, and accountability for State surveillance of communications, their interception and the collection of personal data ...” The Council of EuropeThe Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 1981 and its Additional Protocol (CETS No. 108) The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 1981 and its Additional Protocol (CETS No. 108) The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 1981 and its Additional Protocol (CETS No. 108) 82. The Convention, in force for Sweden since 1 October 1985, sets out standards for data protection in the sphere of automatic processing of personal data in the public and private sectors. It provides, in so far as relevant, as follows: Preamble “The member States of the Council of Europe, signatory hereto, Considering that the aim of the Council of Europe is to achieve greater unity between its members, based in particular on respect for the rule of law, as well as human rights and fundamental freedoms; Considering that it is desirable to extend the safeguards for everyone’s rights and fundamental freedoms, and in particular the right to the respect for privacy, taking account of the increasing flow across frontiers of personal data undergoing automatic processing; Reaffirming at the same time their commitment to freedom of information regardless of frontiers; Recognising that it is necessary to reconcile the fundamental values of the respect for privacy and the free flow of information between peoples, Have agreed as follows:” Article 1 – Object and purpose “The purpose of this Convention is to secure in the territory of each Party for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him (“data protection”).” Article 8 – Additional safeguards for the data subject “Any person shall be enabled: a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file; b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form; c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this convention; d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with.” Article 9 – Exceptions and restrictions “1. No exception to the provisions of Articles 5, 6 and 8 of this Convention shall be allowed except within the limits defined in this article. 2. Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of: a. protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences; b. protecting the data subject or the rights and freedoms of others. ...” Article 10 – Sanctions and remedies “Each Party undertakes to establish appropriate sanctions and remedies for violations of provisions of domestic law giving effect to the basic principles for data protection set out in this chapter.” 83. The Explanatory Report to the above-mentioned Convention explains the following as regards its Article 9: “... 55. Exceptions to the basic principles for data protection are limited to those which are necessary for the protection of fundamental values in a democratic society. The text of the second paragraph of this article has been modelled after that of the second paragraphs of Articles 6, 8, 10 and 11 of the European Human Rights Convention. It is clear from the decisions of the Commission and the Court of Human Rights relating to the concept of ‘necessary measures’ that the criteria for this concept cannot be laid down for all countries and all times, but should be considered in the light of the given situation in each country. 56. Littera a in paragraph 2 lists the major interests of the State which may require exceptions. These exceptions are very specific in order to avoid that, with regard to the general application of the convention, States would have an unduly wide leeway. States retain, under Article 16, the possibility to refuse application of the convention in individual cases for important reasons, which include those enumerated in Article 9. The notion of ‘State security’ should be understood in the traditional sense of protecting national sovereignty against internal or external threats, including the protection of the international relations of the State...” 84. The Additional Protocol to the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows of 8 November 2001 (CETS No. 181), in force for Sweden since 1 July 2004, provides as follows, in so far as relevant: Article 1 – Supervisory authorities “1. Each Party shall provide for one or more authorities to be responsible for ensuring compliance with the measures in its domestic law giving effect to the principles stated in Chapters II and III of the Convention and in this Protocol. 2. a. To this end, the said authorities shall have, in particular, powers of investigation and intervention, as well as the power to engage in legal proceedings or bring to the attention of the competent judicial authorities violations of provisions of domestic law giving effect to the principles mentioned in paragraph 1 of Article 1 of this Protocol. b. Each supervisory authority shall hear claims lodged by any person concerning the protection of his/her rights and fundamental freedoms with regard to the processing of personal data within its competence. 3. The supervisory authorities shall exercise their functions in complete independence. 4. Decisions of the supervisory authorities, which give rise to complaints, may be appealed against through the courts. ...” Article 2 – Transborder flows of personal data to a recipient which is not subject to the jurisdiction of a Party to the Convention “1. Each Party shall provide for the transfer of personal data to a recipient that is subject to the jurisdiction of a State or organisation that is not Party to the Convention only if that State or organisation ensures an adequate level of protection for the intended data transfer. 2. By way of derogation from paragraph 1 of Article 2 of this Protocol, each Party may allow for the transfer of personal data: a. if domestic law provides for it because of: – specific interests of the data subject, or – legitimate prevailing interests, especially important public interests, or b. if safeguards, which can in particular result from contractual clauses, are provided by the controller responsible for the transfer and are found adequate by the competent authorities according to domestic law.” Recommendation of the Committee of Ministers of the Council of Europe on the protection of personal data in the area of telecommunication services 85. Recommendation No. R (95) 4 of the Committee of Ministers on the protection of personal data in the area of telecommunication services, with particular reference to telephone services, adopted on 7 February 1995, reads, insofar as relevant, as follows: “2.4. Interference by public authorities with the content of a communication, including the use of listening or tapping devices or other means of surveillance or interception of communications, must be carried out only when this is provided for by law and constitutes a necessary measure in a democratic society in the interests of: a. protecting state security, public safety, the monetary interests of the state or the suppression of criminal offences; b. protecting the data subject or the rights and freedoms of others. 2.5. In the case of interference by public authorities with the content of a communication, domestic law should regulate: a. the exercise of the data subject’s rights of access and rectification; b. in what circumstances the responsible public authorities are entitled to refuse to provide information to the person concerned, or delay providing it; c. storage or destruction of such data. If a network operator or service provider is instructed by a public authority to effect an interference, the data so collected should be communicated only to the body designated in the authorisation for that interference.” The 2015 Report of the European Commission for Democracy through Law (“the Venice Commission”) on the Democratic Oversight of Signals Intelligence Agencies 86. In this report, published in December 2015, the Venice Commission noted, at the outset, the value that bulk interception could have for security operations, since it enabled the security services to adopt a proactive approach, looking for hitherto unknown dangers rather than investigating known ones. However, it also noted that intercepting bulk data in transmission, or requirements that telecommunications companies store and then provide telecommunications content data or metadata to law ‑ enforcement or security agencies involved an interference with the privacy and other human rights of a large proportion of the population of the world. In this regard, the Venice Commission considered that the main interference with privacy occurred when stored personal data were accessed and/or processed by the agencies. For this reason, the computer analysis (usually with the help of selectors) was one of the important stages for balancing personal integrity concerns against other interests. 87. According to the report, the two most significant safeguards were the authorisation (of collection and access) and the oversight of the process. It was clear from the Court’s case-law that the latter had to be performed by an independent, external body. While the Court had a preference for judicial authorisation, it had not found this to be a necessary requirement. Rather, the system had to be assessed as a whole, and where independent controls were absent at the authorisation stage, particularly strong safeguards had to exist at the oversight stage. In this regard, the Venice Commission considered the example of the system in the United States, where authorisation was given by the Foreign Intelligence Surveillance Court. However, it noted that despite the existence of judicial authorisation, the lack of independent oversight of the conditions and limitations set by the court was problematic. 88. Similarly, the Commission observed that notification of the subject of surveillance was not an absolute requirement of Article 8 of the Convention, since a general complaints procedure to an independent oversight body could compensate for non-notification. 89. The report also considered internal controls to be a “primary safeguard”. Recruitment and training were key issues; in addition, it was important for the agencies to build in respect for privacy and other human rights when promulgating internal rules. 90. The report also considered the position of journalists. It accepted that they were a group which required special protection, since searching their contacts could reveal their sources (and the risk of discovery could be a powerful disincentive to whistle-blowers). Nevertheless, it considered there to be no absolute prohibition on searching the contacts of journalists, provided that there were very strong reasons for doing so. It acknowledged, however, that the journalistic profession was not one which was easily identified, since NGOs were also engaged in building public opinion and even bloggers could claim to be entitled to equivalent protections. 91. Finally, the report considered briefly the issue of intelligence sharing, and in particular the risk that States could thereby circumvent stronger domestic surveillance procedures or any legal limits which their agencies might be subject to as regards domestic intelligence operations. It considered that a suitable safeguard would be to provide that the bulk material transferred could only be searched if all the material requirements of a national search were fulfilled and this was duly authorised in the same way as a search of bulk material obtained by the signals intelligence agency using its own techniques. European union LAWCharter of Fundamental Rights of the European Union Charter of Fundamental Rights of the European Union Charter of Fundamental Rights of the European Union 92. Articles 7, 8 and 11 of the Charter provide as follows: Article 7 – Respect for private and family life “ Everyone has the right to respect for his or her private and family life, home and communications.” Article 8 – Protection of personal data “1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which have been collected concerning him or her, and the right to have them rectified. 3. Compliance with these rules shall be subject to control by an independent authority. ” Article 11 – Freedom of expression and information “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected.” European Union directives and regulations relating to protection and processing of personal data 93. The Data Protection Directive (Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data), adopted on 24 October 1995, regulated for many years the protection and processing of personal data within the European Union. As the activities of Member States regarding public safety, defence and State security fell outside the scope of Community law, the Directive did not apply to these activities (Article 3(2)). 94. The General Data Protection Regulation, adopted in April 2016, superseded the Data Protection Directive and became enforceable on 25 May 2018. The regulation, which is directly applicable in Member States, contains provisions and requirements pertaining to the processing of personally identifiable information of data subjects inside the European Union, and applies to all enterprises, regardless of location, doing business with the European Economic Area. Business processes that handle personal data must be built with data protection by design and by default, meaning that personal data must be stored using pseudonymisation or full anonymization, and use the highest-possible privacy settings by default, so that the data are not available publicly without explicit consent, and cannot be used to identify a subject without additional information stored separately. No personal data may be processed unless it is done under a lawful basis specified by the regulation, or if the data controller or processor has received explicit, opt-in consent from the data’s owner. The data owner has the right to revoke this permission at any time. 95. A processor of personal data must clearly disclose any data collection, declare the lawful basis and purpose for data processing, how long data are being retained, and if they are being shared with any third-parties or outside of the European Union. Users have the right to request a portable copy of the data collected by a processor in a common format, and the right to have their data erased under certain circumstances. Public authorities, and businesses whose core activities centre around regular or systematic processing of personal data, are required to employ a data protection officer (DPO), who is responsible for managing compliance with the GDPR. Businesses must report any data breaches within 72 hours if they have an adverse effect on user privacy. 96. The Privacy and Electronic Communications Directive (Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector), adopted on 12 July 2002, states, in recitals 2 and 11: “(2) This Directive seeks to respect the fundamental rights and observes the principles recognised in particular by the Charter of fundamental rights of the European Union. In particular, this Directive seeks to ensure full respect for the rights set out in Articles 7 and 8 of that Charter. (11) Like Directive 95/46/EC, this Directive does not address issues of protection of fundamental rights and freedoms related to activities which are not governed by Community law. Therefore it does not alter the existing balance between the individual’s right to privacy and the possibility for Member States to take the measures referred to in Article 15(1) of this Directive, necessary for the protection of public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the enforcement of criminal law. Consequently, this Directive does not affect the ability of Member States to carry out lawful interception of electronic communications, or take other measures, if necessary for any of these purposes and in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the rulings of the European Court of Human Rights. Such measures must be appropriate, strictly proportionate to the intended purpose and necessary within a democratic society and should be subject to adequate safeguards in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms.” The Directive further provides, in so far as relevant: Article 1 – Scope and aim “1. This Directive harmonises the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community. 2. The provisions of this Directive particularise and complement Directive 95/46/EC for the purposes mentioned in paragraph 1. Moreover, they provide for protection of the legitimate interests of subscribers who are legal persons. 3. This Directive shall not apply to activities which fall outside the scope of the Treaty establishing the European Community, such as those covered by Titles V and VI of the Treaty on European Union, and in any case to activities concerning public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the activities of the State in areas of criminal law.” Article 15 – Application of certain provisions of Directive 95/46/EC “1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union.” 97. On 15 March 2006 the Data Retention Directive (Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC) was adopted. Prior to the judgment of 2014 declaring it invalid (see the paragraph below), it provided, inter alia, as follows: Article 1 - Subject matter and scope “1. This Directive aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. 2. This Directive shall apply to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It shall not apply to the content of electronic communications, including information consulted using an electronic communications network.” Article 3 – Obligation to retain data “1. By way of derogation from Articles 5, 6 and 9 of Directive 2002/58/EC, Member States shall adopt measures to ensure that the data specified in Article 5 of this Directive are retained in accordance with the provisions thereof, to the extent that those data are generated or processed by providers of publicly available electronic communications services or of a public communications network within their jurisdiction in the process of supplying the communications services concerned. ...” Relevant case-law of the Court of Justice of the European Union (“CJEU”) Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others (Cases C-293/12 and C-594/12; ECLI:EU:C:2014:238) Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others (Cases C-293/12 and C-594/12; ECLI:EU:C:2014:238) Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others (Cases C-293/12 and C-594/12; ECLI:EU:C:2014:238) 98. In a judgment of 8 April 2014 the CJEU declared invalid the Data Retention Directive 2006/24/EC laying down the obligation on the providers of publicly available electronic communication services or of public communications networks to retain all traffic and location data for periods from six months to two years, in order to ensure that the data were available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. The CJEU noted that, even though the directive did not permit the retention of the content of the communication, the traffic and location data covered by it might allow very precise conclusions to be drawn concerning the private lives of the persons whose data had been retained. Accordingly, the obligation to retain the data constituted in itself an interference with the right to respect for private life and communications guaranteed by Article 7 of the Charter of Fundamental Rights of the EU and the right to protection of personal data under Article 8 of the Charter. 99. The access of the competent national authorities to the data constituted a further interference with those fundamental rights, which the CJEU considered to be “particularly serious”. The fact that data were retained and subsequently used without the subscriber or registered user being informed was, according to the CJEU, likely to generate in the minds of the persons concerned the feeling that their private lives were the subject of constant surveillance. The interference satisfied an objective of general interest, namely to contribute to the fight against serious crime and terrorism and thus, ultimately, to public security. However, it failed to satisfy the requirement of proportionality. 100. Firstly, the directive covered, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. It therefore entailed an interference with the fundamental rights of practically the entire European population. It applied even to persons for whom there was no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime. 101. Secondly, the directive did not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. By simply referring, in a general manner, to serious crime, as defined by each Member State in its national law, the directive failed to lay down any objective criterion by which to determine which offences might be considered to be sufficiently serious to justify such an extensive interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. Above all, the access by the competent national authorities to the data retained was not made dependent on a prior review carried out by a court or by an independent administrative body whose decision sought to limit access to the data and their use to what was strictly necessary for the purpose of attaining the objective pursued. 102. Thirdly, the directive required that all data be retained for a period of at least six months, without any distinction being made between the categories of data on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned. The CJEU concluded that the directive entailed a wide-ranging and particularly serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, without such an interference being precisely circumscribed by provisions to ensure that it was actually limited to what was strictly necessary. The CJEU also noted that the directive did not provide for sufficient safeguards, by means of technical and organisational measures, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of those data. Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others (Cases C ‑ 203/15 and C ‑ 698/15; ECLI:EU:C:2016:970) 103. In Secretary of State for the Home Department v. Watson and Others, the applicants had sought judicial review of the legality of section 1 of the United Kingdom Data Retention and Investigatory Powers Act 2014 (“DRIPA”), pursuant to which the Secretary of State could require a public telecommunications operator to retain relevant communications data if he or she considered it necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (h) of section 22(2) of the Regulation of Investigatory Powers Act 2000 (“RIPA”). The applicants claimed, inter alia, that section 1 was incompatible with Articles 7 and 8 of the Charter and Article 8 of the Convention. 104. By judgment of 17 July 2015, the High Court held that the Digital Rights judgment laid down “mandatory requirements of EU law” applicable to the legislation of Member States on the retention of communications data and access to such data. Since the CJEU, in that judgment, held that Directive 2006/24 was incompatible with the principle of proportionality, national legislation containing the same provisions as that directive could, equally, not be compatible with that principle. In fact, it followed from the underlying logic of the Digital Rights judgment that legislation that established a general body of rules for the retention of communications data was in breach of the rights guaranteed in Articles 7 and 8 of the Charter, unless that legislation was complemented by a body of rules for access to the data, defined by national law, which provided sufficient safeguards to protect those rights. Accordingly, section 1 of DRIPA was not compatible with Articles 7 and 8 of the Charter as it did not lay down clear and precise rules providing for access to and use of retained data and access to that data was not made dependent on prior review by a court or an independent administrative body. 105. On appeal by the Secretary of State, the Court of Appeal sought a preliminary ruling from the CJEU. 106. Before the CJEU this case was joined with the request for a preliminary ruling from the Administrative Court of Appeal ( kammarrätten ) in Stockholm in Case C-203/15 Tele2 Sverige AB v Post- och telestyrelsen. Following an oral hearing in which some fifteen EU Member States intervened, the CJEU gave judgment on 21 December 2016. The CJEU held that Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, had to be interpreted as precluding national legislation governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, was not restricted solely to fighting serious crime, where access was not subject to prior review by a court or an independent administrative authority, and where there was no requirement that the data concerned should be retained within the European Union. 107. The CJEU declared the Court of Appeal’s question whether the protection afforded by Articles 7 and 8 of the Charter was wider than that guaranteed by Article 8 of the Convention inadmissible. 108. Following the handing down of the CJEU’s judgment, the case was relisted before the Court of Appeal. On 31 January 2018 it granted declaratory relief in the following terms: that section 1 of DRIPA was inconsistent with EU law to the extent that it permitted access to retained data where the object pursued by access was not restricted solely to fighting serious crime; or where access was not subject to prior review by a court or independent administrative authority. Ministerio Fiscal (Case C-207/16; ECLI:EU:C:2018:788) 109. This request for a preliminary ruling arose after Spanish police, in the course of investigating the theft of a wallet and mobile telephone, asked the investigating magistrate to grant them access to data identifying the users of telephone numbers activated with the stolen telephone during a period of twelve days prior to the theft. The investigating magistrate rejected the request on the ground, inter alia, that the acts giving rise to the criminal investigation did not constitute a “serious” offence. The referring court subsequently sought guidance from the CJEU on fixing the threshold of seriousness of offences above which an interference with fundamental rights, such as competent national authorities’ access to personal data retained by providers of electronic communications services, may be justified. 110. On 2 October 2018 the Grand Chamber of the CJEU ruled that Article 15(1) of Directive 2002/58/EC, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, had to be interpreted as meaning that the access of public authorities to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners, entailed an interference with their fundamental rights which was not sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime. In particular, it indicated that: “In accordance with the principle of proportionality, serious interference can be justified, in areas of prevention, investigation, detection and prosecution of criminal offences, only by the objective of fighting crime which must also be defined as ‘serious’. By contrast, when the interference that such access entails is not serious, that access is capable of being justified by the objective of preventing, investigating, detecting and prosecuting ‘criminal offences’ generally.” 111. It did not consider access to the data which were the subject of the request to be a particularly serious interference because it: “only enables the SIM card or cards activated with the stolen mobile telephone to be linked, during a specific period, with the identity of the owners of those SIM cards. Without those data being cross-referenced with the data pertaining to the communications with those SIM cards and the location data, those data do not make it possible to ascertain the date, time, duration and recipients of the communications made with the SIM card or cards in question, nor the locations where those communications took place or the frequency of those communications with specific people during a given period. Those data do not therefore allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned.” Maximillian Schrems v. Data Protection Commissioner (Case C ‑ 362/14; ECLI:EU:C:2015:650 ) 112. This request for a preliminary ruling arose from a complaint against Facebook Ireland Ltd which was made to the Irish Data Protection Commissioner by Mr. Schrems, an Austrian privacy advocate. Mr. Schrems challenged the transfer of his data by Facebook Ireland to the United States and the retention of his data on servers located in that country. The Data Protection Commissioner rejected the complaint since, in a decision of 26 July 2000, the European Commission had considered that the United States ensured an adequate level of protection of the personal data transferred (“the Safe Harbour Decision”). 113. In its ruling of 6 October 2015, the CJEU held that the existence of a Commission decision finding that a third country ensured an adequate level of protection of the personal data transferred could not eliminate or even reduce the powers available to the national supervisory authorities under the Charter or the Data Protection Directive. Therefore, even if the Commission had adopted a decision, the national supervisory authorities had to be able to examine, with complete independence, whether the transfer of a person’s data to a third country complied with the requirements laid down by the Directive. 114. However, only the CJEU could declare a decision of the Commission invalid. In this regard, it noted that the safe harbour scheme was applicable solely to the United States’ undertakings which adhered to it, and United States’ public authorities were not themselves subject to it. Furthermore, national security, public interest and law enforcement requirements of the United States prevailed over the safe harbour scheme, so that United States’ undertakings were bound to disregard, without limitation, the protective rules laid down by the scheme where they conflicted with such requirements. The safe harbour scheme therefore enabled interference by United States’ public authorities with the fundamental rights of individuals, and the Commission had not, in the Safe Harbour Decision, referred either to the existence, in the United States, of rules intended to limit any such interference or to the existence of effective legal protection against the interference. 115. As to whether the level of protection in the United States was essentially equivalent to the fundamental rights and freedoms guaranteed within the EU, the CJEU found that legislation was not limited to what was strictly necessary where it authorised, on a generalised basis, storage of all the personal data of all the persons whose data were transferred from the EU to the United States without any differentiation, limitation or exception being made in the light of the objective pursued and without an objective criterion being laid down for determining the limits of the access of the public authorities to the data and of their subsequent use. Therefore, under EU law legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications had to be regarded as compromising the essence of the fundamental right to respect for private life. Likewise, legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, compromised the essence of the fundamental right to effective judicial protection. 116. Finally, the Court found that the Safe Harbour Decision denied the national supervisory authorities their powers where a person called into question whether the decision was compatible with the protection of the privacy and of the fundamental rights and freedoms of individuals. The Commission had not had competence to restrict the national supervisory authorities’ powers in that way and, consequently, the CJEU held the Safe Harbour Decision to be invalid. Data Protection Commissioner v Facebook Ireland and Maximillian Schrems Case (C-311/18; ECLI:EU:C:2020:559) 117. Following the judgment of the CJEU of 6 October 2015, the referring court annulled the rejection of Mr Schrems’ complaint and referred that decision back to the Commissioner. In the course of the Commissioner’s investigation, Facebook Ireland explained that a large part of personal data were transferred to Facebook Inc. pursuant to the standard data protection clauses set out in the annex to Commission Decision 2010/87/EU, as amended. 118. Mr Schrems reformulated his complaint, claiming, inter alia, that the United States’ law required Facebook Inc. to make the personal data transferred to it available to certain United States’ authorities, such as the National Security Agency (“the NSA”) and the Federal Bureau of Investigation. Since those data were used in the context of various monitoring programmes in a manner incompatible with Articles 7, 8 and 47 of the Charter, Decision 2010/87/EU could not justify the transfer of those data to the United States. On this basis, he asked the Commissioner to prohibit or suspend the transfer of his personal data to Facebook Inc. 119. In a draft decision published on 24 May 2016, the Commissioner took the provisional view that the personal data of European Union citizens transferred to the United States were likely to be consulted and processed by the United States’ authorities in a manner incompatible with Articles 7 and 8 of the Charter and that United States’ law did not provide those citizens with legal remedies compatible with Article 47 of the Charter. The Commissioner found that the standard data protection clauses in the annex to Decision 2010/87/EU were not capable of remedying that defect, since they did not bind the United States’ authorities. 120. Having considered the United States’ intelligence activities under section 702 of FISA and Executive Order 12333, the High Court concluded that the United States carried out mass processing of personal data without ensuring a level of protection essentially equivalent to that guaranteed by Articles 7 and 8 of the Charter; and that European Union citizens did not have available to them the same remedies as citizens of the United States, with the consequence that United States’ law did not afford European Union citizens a level of protection essentially equivalent to that guaranteed by Article 47 of the Charter. It stayed the proceedings and referred a number of questions to the CJEU for a preliminary ruling. It asked, inter alia, whether European Union law applied to the transfer of data from a private company in the European Union to a private company in a third country; if so, how the level of protection in the third country should be assessed; and whether the level of protection afforded by the United States respected the essence of the rights guaranteed by Article 47 of the Charter. 121. In a judgment of 16 July 2020 the CJEU held that the General Data Protection Regulation (“GDPR”) applied to the transfer of personal data for commercial purposes by an economic operator established in a Member State to another economic operator established in a third country, irrespective of whether, at the time of that transfer or thereafter, those data were liable to be processed by the authorities of the third country in question for the purposes of public security, defence and State security. Moreover, the appropriate safeguards, enforceable rights and effective legal remedies required by the GDPR had to ensure that data subjects whose personal data were transferred to a third country pursuant to standard data protection clauses were afforded a level of protection essentially equivalent to that guaranteed within the European Union. To that end, the assessment of the level of protection afforded in the context of such a transfer had to take into consideration both the contractual clauses agreed between the controller or processor established in the European Union and the recipient of the transfer established in the third country concerned and, as regards any access by the public authorities of that third country to the personal data transferred, the relevant aspects of the legal system of that third country. 122. Furthermore, unless there was a valid Commission adequacy decision, the competent supervisory authority was required to suspend or prohibit a transfer of data to a third country if, in the view of that supervisory authority and in the light of all the circumstances of that transfer, the standard data protection clauses adopted by the Commission were not or could not be complied with in that third country and the protection of the data transferred (as required by European Union law) could not be ensured by other means. 123. In order for the Commission to adopt an adequacy decision, it had to find, duly stating reasons, that the third country concerned ensured, by reason of its domestic law or its international commitments, a level of protection of fundamental rights essentially equivalent to that guaranteed in the European Union legal order. In the CJEU’s view, the Safe Harbour decision was invalid. Section 702 of the Foreign Intelligence Security Act (“FISA”) did not indicate any limitations on the power it conferred to implement surveillance programmes for the purposes of foreign intelligence or the existence of guarantees for non-US persons potentially targeted by those programmes. In those circumstances, it could not ensure a level of protection essentially equivalent to that guaranteed by the Charter. Furthermore, as regards the monitoring programmes based on Executive Order 12333, it was clear that that order also did not confer rights which were enforceable against the United States’ authorities in the courts. Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Others (Case C-623/17; ECLI:EU:C:2020:790) and La Quadrature du Net and Others, French Data Network and Others and Ordre des barreaux francophones et germanophone and Others (Cases C-511/18, C-512/18 and C-520/18; ECLI:EU:C:2020:791) 124. On 8 September 2017 the United Kingdom Investigatory Powers Tribunal (“IPT”) gave judgment in the case of Privacy International, which concerned the acquisition by the intelligence services of bulk communications data under section 94 of the Telecommunications Act 1984 and bulk personal data. The IPT found that, following their avowal, the regimes were compliant with Article 8 of the Convention. However, it identified the following four requirements which appeared to flow from the CJEU judgment in Watson and Others and which seemed to go beyond the requirements of Article 8 of the Convention: a restriction on non-targeted access to bulk data; a need for prior authorisation (save in cases of validly established emergency) before data could be accessed; provision for subsequent notification of those affected; and the retention of all data within the European Union. 125. On 30 October 2017 the IPT made a request to the CJEU for a preliminary ruling clarifying the extent to which the Watson requirements could apply where the bulk acquisition and automated processing techniques were necessary to protect national security. In doing so, it expressed serious concern that if the Watson requirements were to apply to measures taken to safeguard national security, they would frustrate them and put the national security of Member States at risk. In particular, it noted the benefits of bulk acquisition in the context of national security; the risk that the need for prior authorisation could undermine the intelligence services’ ability to tackle the threat to national security; the danger and impracticality of implementing a requirement to give notice in respect of the acquisition or use of a bulk database, especially where national security was at stake; and the impact an absolute bar on the transfer of data outside the European Union could have on Member States’ treaty obligations. 126. A public hearing took place on 9 September 2019. The Privacy International case was heard together with cases C‑511/18 and C‑512/18, La Quadrature du Net and Others, and C‑520/18, Ordre des barreaux francophones et germanophone and Others, which also concerned the application of Directive 2002/58 to activities related to national security and the combating of terrorism. Thirteen States intervened in support of the States concerned. 127. Two separate judgments were handed down on 6 October 2020. In Privacy International the CJEU found that national legislation enabling a State authority to require providers of electronic communications services to forward traffic data and location data to the security and intelligence agencies for the purpose of safeguarding national security fell within the scope of the Directive on privacy and electronic communications. The interpretation of that Directive had to take account of the right to privacy, guaranteed by Article 7 of the Charter, the right to protection of personal data, guaranteed by Article 8, and the right to freedom of expression, guaranteed by Article 11. Limitations on the exercise of those rights had to be provided for by law, respect the essence of the rights, and be proportionate, necessary, and genuinely meet the objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. Furthermore, limitations on the protection of personal data must apply only in so far as is strictly necessary; and in order to satisfy the requirement of proportionality, the legislation must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards, so that the persons whose personal data are affected have sufficient guarantees that data will be protected effectively against the risk of abuse. 128. In the opinion of the CJEU, national legislation requiring providers of electronic communications services to disclose traffic data and location data to the security and intelligence agencies by means of general and indiscriminate transmission – which affected all persons using electronic communications services – exceeded the limits of what was strictly necessary and could not be considered to be justified as required by the Directive on privacy and electronic communications read in light of the Charter. 129. However, in La Quadrature du Net and Others the CJEU confirmed that while the Directive on privacy and electronic communications, read in light of the Charter, precluded legislative measures which provided for the general and indiscriminate retention of traffic and location data, where a Member State was facing a serious threat to national security that proved to be genuine and present or foreseeable, it did not preclude legislative measures requiring service providers to retain, generally and indiscriminately, traffic and location data for a period limited to what was strictly necessary, but which could be extended if the threat persisted. For the purposes of combating serious crime and preventing serious threats to public security, a Member State could also provide - if it was limited in time to what was strictly necessary - for the targeted retention of traffic and location data, on the basis of objective and non-discriminatory factors according to the categories of person concerned or using a geographical criterion, or of IP addresses assigned to the source of an Internet connection. It was also open to a Member State to carry out a general and indiscriminate retention of data relating to the civil identity of users of means of electronic communication, without the retention being subject to a specific time limit. 130. Furthermore, the Directive on privacy and electronic communications, read in light of the Charter, did not preclude national rules which required providers of electronic communications services to have recourse, first, to the automated analysis and real-time collection of traffic and location data, and secondly, to the real-time collection of technical data concerning the location of the terminal equipment used, where it was limited to situations in which a Member State was facing a serious threat to national security that was genuine and present or foreseeable, and where recourse to such analysis may be the subject of an effective review by a court or independent administrative body whose decision was binding; and where recourse to the real-time collection of traffic and location data was limited to persons in respect of whom there was a valid reason to suspect that they were involved in terrorist activities and was subject to a prior review carried out either by a court or by an independent administrative body whose decision was binding. RELEVANT COMPARATIVE LAW AND PRACTICEContracting StatesOverview Contracting StatesOverview Overview Contracting StatesOverview Overview Overview 131. At least seven Contracting States (being Finland, France, Germany, the Netherlands, Sweden, Switzerland and the United Kingdom) officially operate bulk interception regimes over cables and/or the airways. 132 In one additional State (Norway) a draft law is being debated: if enacted, it will also authorise bulk interception. 133. The bulk interception regime in the United Kingdom is described in detail in the Court’s judgment in the case of Big Brother Watch and Others v. the United Kingdom (nos. 58170/13 and 2 others, 25 May 2021). 134. As regards intelligence sharing agreements, at least thirty-nine Contracting States have either concluded intelligence sharing agreements with other States, or have the possibility for such agreements. Two expressly prohibit and two expressly permit the State to ask a foreign power to intercept material on their behalf. In the remaining States, the position on this issue is not clear. 135. Finally, in most States the applicable safeguards are broadly the same as for domestic operations, with various restrictions on the use of the received data and in some cases an obligation to destroy them if they became irrelevant. Judgment of the German Federal Constitutional Court of 19 May 2020 (1 BvR 2835/17) 136. In this judgment, the Constitutional Court considered whether the Federal Intelligence Service’s powers to conduct strategic (or “signals”) intelligence on foreign telecommunications were in breach of the fundamental rights contained in the Basic Law (Grundgesetz). 137. The regime in question involved the interception of both content and related communications data and aimed only to monitor foreign telecommunications outside of German territory. Such surveillance could be carried out for the purpose of gaining information about topics determined by the Federal Government’s mandate to be significant for the State’s foreign and security policy. It could, however, also be used to target specific individuals. The admissibility and necessity of the orders to conduct such surveillance was controlled by an Independent Panel. According to the Constitutional Court’s judgment, interception was followed by a multi-stage, fully automated filtering and evaluation process. For this purpose, the Federal Intelligence Service used a six-digit number of search terms which were subject to control by an internal sub-unit responsible for ensuring that the link between the search terms employed and the purpose of the data request was explained in a reasonable and comprehensive manner. After the application of the automated filtering process, intercepted material was either deleted or stored and sent for evaluation by an analyst. 138. The sharing of intercept material with foreign intelligence services was accompanied by a cooperation agreement which had to include usage restrictions and assurances to ensure that data were handled and deleted in accordance with the rule of law. 139. The Constitutional Court held that the regime in question was not compliant with the Basic Law. While it acknowledged the overriding public interest in effective foreign intelligence gathering, it nevertheless considered, inter alia, that the regime was not restricted to sufficiently specific purposes; that it was not structured in a way that allowed for adequate oversight and control; and that various safeguards were lacking, particularly with respect to the protection of journalists, lawyers and other persons whose communications required special confidentiality protection. 140. Regarding the sharing of intelligence obtained through foreign surveillance, the court again found the safeguards to be lacking. In particular, it was not specified with sufficient clarity when weighty interests might justify data transfers. In addition, while the court did not consider it necessary for a recipient State to have comparable rules on the processing of personal data, it nevertheless considered that data could only be transferred abroad if there was an adequate level of data protection and there was no reason to fear that the information would be used to violate fundamental principles of the rule of law. More generally, in the context of intelligence sharing, the court considered that cooperation with foreign States should not be used to undermine domestic safeguards and if the Federal Intelligence Service wished to use search terms provided to it by a foreign intelligence service it should first confirm the existence of the necessary link between the search terms and the purpose of the data request and that the resulting data did not disclose a particular need for confidentiality (for example, because they concerned whistle-blowers or dissidents). Although the court did not exclude the possibility of the bulk transfer of data to foreign intelligence services, it found that this could not be a continuous process based on a single purpose. 141. Finally, the court found that the surveillance powers under review also lacked an extensive independent and continual oversight serving to ensure that the law was observed and compensating for the virtual absence of safeguards commonly guaranteed under the rule of law. The legislator had to provide for two different types of oversight, which had also to be reflected in the organisational framework: firstly, a body resembling a court, tasked with conducting oversight and deciding in a formal procedure providing ex ante or ex post legal protection; and secondly, an oversight that was administrative in nature and could, on its own initiative, randomly scrutinise the entire process of strategic surveillance as to its lawfulness. In the Constitutional Court´s view, certain key procedural steps would, in principle, require ex ante authorisation by a body resembling a court, namely: the formal determination of the various surveillance measures (exemptions in cases of urgency were not ruled out); the use of search terms, insofar as these directly targeted individuals who might pose a danger and were thus of direct interest to the Federal Intelligence Service; the use of search terms that directly targeted individuals whose communications required special confidentiality protection; and sharing the data of journalists, lawyers and other professions meriting special confidentiality protection with foreign intelligence services. The United States of America 142. The United States’ intelligence services operate the Upstream programme pursuant to section 702 of the Foreign Intelligence Surveillance Act (“FISA”). 143. The Attorney General and Director of National Intelligence make annual certifications authorising surveillance targeting non-U.S. persons reasonably believed to be located outside the U.S. They do not have to specify to the Foreign Intelligence Surveillance Court (“FISC”) the particular non-U.S. persons to be targeted, and there is no requirement to demonstrate probable cause to believe that an individual targeted is an agent of a foreign power. Instead, the section 702 certifications identify categories of information to be collected, which have to meet the statutory definition of foreign intelligence information. Authorised certifications have included information concerning international terrorism, and the acquisition of weapons of mass destruction. 144. Pursuant to the authorisation, the NSA, with the compelled assistance of service providers, copies and searches streams of Internet traffic as data flows across the Internet. Both telephone calls and Internet communications are collected. Prior to April 2017 the NSA acquired Internet transactions that were “to”, “from”, or “about” a tasked selector. A “to” or “from” communication was a communication for which the sender or a recipient was a user of a section 702 tasked selector. An “about” communication was one in which the tasked selector was referenced within the acquired Internet transaction, but the target was not necessarily a participant in the communication. Collection of “about” communications therefore involved searching the content of communications traversing the Internet. However, from April 2017 onwards the NSA have not been acquiring or collecting communications that are merely “about” a target. In addition the NSA stated that, as part of this curtailment, it would delete the vast majority of previously acquired Upstream Internet communications as soon as practicable. 145. Section 702 requires the Government to develop targeting and minimization procedures which are kept under review by the FISC. 146. Executive Order 12333, which was signed in 1981, authorises the collection, retention and dissemination of information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation. Surveillance of foreign nationals under Executive Order 12333 is not subject to domestic regulation under FISA. It is not known how much data are collected under Executive Order 12333, relative to those collected under section 702. THE LAW PRELIMINARY ISSUE: DATE OF ASSESSMENT 147. Before the Chamber the applicant sought a ruling on the Convention compatibility of the relevant Swedish legislation as it applied during three distinct periods (see paragraph 82 of the Chamber judgment). The Chamber decided to focus on the Swedish legislation as it stood at the time of its examination of the case (see paragraphs 96-98 of the Chamber judgment). 148. Before the Grand Chamber, the applicant did not reiterate its request concerning the three periods but relied in its submissions on, inter alia, developments from 2018 and 2019 post-dating the Chamber’s examination of the case. 149. The Government considered that, having regard to the Court’s case law according to which “the content and scope of the “case” referred to the Grand Chamber are ... delimited by the Chamber’s decision on admissibility”, the Grand Chamber’s review should be limited to the Swedish legislation as it stood at the time of the Chamber’s examination. 150. The Grand Chamber agrees with the Chamber that it cannot be the Court’s task, when reviewing the relevant law in abstracto, as in the present case, to examine compatibility with the Convention before and after every single legislative amendment. 151. The temporal scope of the Grand Chamber’s examination is therefore limited to the Swedish law and practice as it stood in May 2018, at the time of the Chamber examination. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 152. The applicant complained that the relevant legislation and practice in Sweden on bulk interception of communications, also referred to as signals intelligence, were in violation of its right to respect for private life and correspondence protected by Article 8 of the Convention. The Government contested that argument. 153. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Government’s preliminary objection on victim status 1. The Chamber judgment 154. Applying the criteria set out in Roman Zakharov v. Russia ([GC], no. 47143/06, ECHR 2015), and Kennedy v. the United Kingdom (no. 26839/05, 18 May 2010), the Chamber considered that the contested legislation on signals intelligence instituted a system of secret surveillance that potentially affected all users and that no domestic remedy provided detailed grounds in response to a complainant who suspects that he or she has had his or her communications intercepted. In these circumstances, the Chamber considered an examination of the relevant legislation in abstracto to be justified and concluded that the applicant could claim to be the victim of a violation of the Convention, even though it was unable to allege that it had been subjected to a concrete measure of interception. For the same reasons the Chamber concluded that the mere existence of the contested legislation amounted in itself to an interference with the applicant’s rights under Article 8. 2. The parties’ submissions before the Grand Chamber (a) The Government 155. The Government stated that the applicant did not belong to a “group of persons or entities targeted by the legislation” on signals intelligence within foreign intelligence. 156. In the Government’s view, furthermore, the contested legislation did not directly affect all users of mobile telephone services and the internet since it was restricted to foreign intelligence, and thereby foreign circumstances. 157. Referring to the six stages of signals intelligence activities as described by them (see paragraph 29 above), the Government claimed that the applicant’s telephone and internet communications were unlikely to be affected for the following reasons: the majority of purely domestic communications would not pass the hand-over points in cross-border cables; even if that happened, the selectors used to identify relevant signals are designed with great precision as regards targeted foreign phenomena and the selectors are subject to approval by the Foreign Intelligence Court; as a result of the above, the applicant’s communications are unlikely to be sifted out in the above automatic processing; any data passing through the communications bearers that has not been selected disappears without any possibility to be reproduced and examined by the FRA; even if the applicant’s data or communications reached the third stage in the bulk interception process, there will be then further refining through automatic and manual means and the risk of the applicant’s communication being retained for further scrutiny beyond that stage is virtually non-existent. 158. In the Government’s view, there is no interference with Article 8 rights until the stage when an analytical examination of selected signals is possible. 159. The Government were also of the view that Swedish law affords effective remedies for a person who suspects that he or she was subjected to signals interception measures, including the possibility to file a request with the Foreign Intelligence Inspectorate and, as a result, obtain a notification whether or not any improper data collection has taken place. In the Government’s view, the Chamber’s insistence that there should be, in addition to the above, “detailed grounds” given in response, was not based on earlier case-law and unduly expanded the relevant requirements. 160. On this basis the Government considered that the applicant might only claim to be a victim of a violation occasioned by the mere existence of impugned legislation if it was able to show that, due to its “personal” situation, it was potentially at risk of being subjected to signals intelligence measures. That was far from being so. Quite to the contrary, the applicant’s telephone and internet communications were unlikely to be intercepted and sifted and, in any event, the risk that they would be retained for further scrutiny beyond the automatic processing stage was virtually non-existent. 161. The Government thus requested the Grand Chamber to declare the application inadmissible for lack of victim status or to find that there was no interference with the applicant’s Article 8 rights. 162. As to other admissibility issues, the Government stated that they did not have objections regarding the exhaustion of domestic remedies. (b) The applicant 163. The applicant considered that the relevant two conditions for claiming victim status in applications concerning the very existence of a legal regime for secret surveillance, as enunciated in Roman Zakharov (cited above), were satisfied in the present case. 164. In particular, the Signals Intelligence Act permits the interception of any communications travelling along the cables that cross the Swedish border, or that are transmitted via the airways, and therefore, according to the applicant, directly affects all users of such communication services. Even though only communications relating to foreign circumstances are allowed to be intercepted, virtually all users of communications services may engage in cross-border communications, either deliberately by contacting a foreign recipient or inadvertently through communicating via a server located abroad. Also, the Signals Intelligence Act permits interception for development purposes unrelated to foreign circumstances. 165. The applicant also submitted that there is no effective remedy at the national level for the applicant or for anyone suspecting that they may have been subject to bulk interception by the Swedish authorities. Therefore, the applicant must be able to have its case examined by the Court and can claim that the very existence of the impugned regime amounts to an interference with its Article 8 rights. 3. The Court’s assessment 166. As the Court noted in Kennedy and Roman Zakharov (both cited above), in cases concerning secret measures, there are special reasons justifying the Court’s departure from its general approach, according to which individuals cannot challenge before it a domestic law in abstracto. The principal reason is to ensure that the secrecy of surveillance measures should not result in them being effectively unchallengeable and outside the supervision of the national judicial authorities and the Court (see Roman Zakharov, cited above, § 169). 167. It is now settled case-law that several criteria apply in assessing whether an applicant may claim to be the victim of a violation of his or her Convention rights allegedly occasioned by the mere existence of secret surveillance measures, or legislation permitting secret surveillance measures. Those criteria were formulated as follows in Roman Zakharov (cited above, § 171): “Firstly, the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he belongs to a group of persons targeted by the contested legislation or because the legislation directly affects all users of communication services by instituting a system where any person can have his communications intercepted. Secondly, the Court will take into account the availability of remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies. ...[W]here the domestic system does not afford an effective remedy to the person who suspects that he was subjected to secret surveillance, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified... In such circumstances the threat of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8. There is therefore a greater need for scrutiny by the Court, and an exception to the rule denying individuals the right to challenge a law in abstracto is justified. In such cases the individual does not need to demonstrate the existence of any risk that secret surveillance measures were applied to him. By contrast, if the national system provides for effective remedies, a widespread suspicion of abuse is more difficult to justify. In such cases, the individual may claim to be a victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures only if he is able to show that, due to his personal situation, he is potentially at risk of being subjected to such measures.” 168. Applying those criteria to the present case, the Court agrees with the Government that the applicant does not belong to a group of persons or entities targeted by the Swedish signal intelligence legislation and measures. Indeed, the applicant has not made such a claim. 169. It must be seen, therefore, whether, as alleged by the applicant, the impugned legislation institutes a system of secret surveillance that potentially affects all persons communicating over the telephone or using the internet. 170. In this regard, it is clear that communications or communications data of any person or entity in Sweden may happen to be transmitted via intercepted communications bearers and may thus be subject to at least the initial stages of automatic processing by the FRA under the contested legislation. 171. The Government’s arguments that signals intelligence is restricted to foreign threats and circumstances and that therefore there is virtually no risk of the applicant’s communications being retained for further scrutiny beyond the automatic processing stage in bulk interception are relevant in the assessment of the intensity and proportionality of the interference with Article 8 rights, including the safeguards built into the impugned signals interception regime, but are not decisive with regard to the applicant’s victim status under Article 34 of the Convention. Any other approach risks rendering the access to the Convention complaints’ procedure conditional on proving that one’s communications are of interest for agencies tasked with foreign intelligence – an almost impossible task, having regard to the secrecy inherent in foreign intelligence activities. 172. In these circumstances, the Court must have regard to the remedies available in Sweden to persons who suspect that they were subjected to measures under the Signals Intelligence Act in order to assess whether, as maintained by the applicant, the threat of surveillance can be claimed in itself to restrict free communication, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8. 173. In this regard, the Court observes that, in practice, persons affected by bulk interception activities do not receive notification. On the other hand, in reaction to a request by anyone, regardless of nationality and residence, the Foreign Intelligence Inspectorate must investigate if the person’s communications have been intercepted through signals intelligence and, if so, verify whether the interception and treatment of the information have been in accordance with law. The Inspectorate has the power to decide that the signals intelligence operation shall cease or that the intelligence shall be destroyed. Any person may also seek the involvement of the Parliamentary Ombudsmen and the Chancellor of Justice in a number of circumstances. 174. The applicant alleged, however, that the only information that might be given by the Inspectorate, without any reasons for the conclusions reached and in the form of a final decision not amenable to appeal, was that there had been an unlawful action. No other remedy could result in the complainant obtaining additional information on the circumstances of a possible interception and use of his or her communications or related data or about the nature of the unlawful action, if it occurred. 175. In the context of the issue of victim status, without prejudice to the conclusions to be drawn in respect of the substantive requirements of Article 8 § 2 and Article 13 in the present case, the Court notes that the domestic remedies available in Sweden to persons who suspect that they are affected by bulk interception measures are subject to a number of limitations. In the Court’s view, even if these limitations are to be considered inevitable or justified, the practical result is that the availability of remedies cannot sufficiently dispel the public’s fears related to the threat of secret surveillance. 176. It follows that it is not necessary to examine whether the applicant, due to its personal situation, is potentially at risk of seeing its communications or related data intercepted and analysed. 177. On the basis of the above considerations the Court finds that an examination of the relevant legislation in abstracto is justified. The Government’s objection that the applicant may not claim to be the victim of a violation of his or her Convention rights allegedly occasioned by the mere existence of Swedish bulk interception legislation and activities is therefore rejected. Merits The Chamber judgment The Chamber judgment The Chamber judgment 178. The Chamber found that the surveillance system clearly had a basis in domestic law and was justified by national security interests. Indeed, given the present-day threats of global terrorism and serious cross-border crime, as well as the increased sophistication of communications technology, the Court held that Sweden had considerable power of discretion (“a wide margin of appreciation”) to decide on setting up such a system of bulk interception. The State’s discretion in actually operating such an interception system was narrower, however, and the Court had to be satisfied that there were adequate and effective guarantees against abuse. It assessed the minimum safeguards to avoid abuse of power, as developed in its case-law and, in particular, in Roman Zakharov (cited above; see paragraphs 99-115 of the Chamber judgment). 179. Overall, while the Chamber found some areas where there was scope for improvement of the system, notably the regulation of the communication of personal data to other States and international organisations and the practice of not giving public reasons following a review of individual complaints (see paragraphs 150, 173 and 177 of the Chamber judgment), it considered that the system revealed no significant shortcomings in its structure and operation. In this context, it noted that the regulatory framework had been reviewed several times with a view to enhancing protection of privacy and that it had in effect developed in such a way that it minimised the risk of interference with privacy and compensated for the lack of openness of the system (see paragraphs 180 and 181 of the Chamber judgment). 180. More specifically, the scope of the interception and the treatment of intercepted data were clearly defined in law; the duration of the measures were clearly regulated (any permit was valid for a maximum of six months and renewal required a new review); the authorisation procedure was detailed and entrusted to a judicial body, the Foreign Intelligence Court; there were several independent bodies, in particular the Foreign Intelligence Inspectorate and the Data Protection Authority, tasked with the supervision and review of the system; and, on request, the Inspectorate had to investigate individual complaints of intercepted communications, as did the Parliamentary Ombudsmen and the Chancellor of Justice (see paragraphs 116-47 and 153-78 of the Chamber judgment). 181. The Chamber therefore found that the Swedish system of signals intelligence provided adequate and sufficient guarantees against arbitrariness and the risk of abuse. The relevant legislation met the “quality of law” requirement and the interference could be considered as being “necessary in a democratic society”. Furthermore, the structure and operation of the system were proportionate to the aim sought to be achieved. The Chamber pointed out, however, that its examination had been made in abstracto and did not preclude a review of the State’s liability under the Convention where, for example, the applicant has been made aware of an actual interception (see paragraphs 179-81 of the Chamber judgment). The parties’ submissions (a) The applicant (i) The applicant’s view on the standard to be applied 182. According to the applicant, bulk interception regimes are inherently incompatible with the Convention. In Klass and Others v. Germany (6 September 1978, § 51, Series A no. 28) and Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 174-75, 24 May 2011), the Court had considered “exploratory” or “general surveillance” as problematic. As regards untargeted interception, solely regimes far more confined in scope than the Swedish regime had been found to be compatible with the Convention. Seeing that FRA could gain access to virtually all cable-based communisations crossing the Swedish border, the amount of intimate, private and privileged data that could be surveyed under the Swedish signals intelligence regime was far greater. Therefore, the applicant considered that only targeted and smaller-scale untargeted interception regimes could fall within the State’s margin of appreciation. Any other approach risked leading to inconsistent case-law having regard to the Court’s approach to other Convention issues, such as blanket retention of fingerprints and DNA profiles, dealt with in S. and Marper v. the United Kingdom ([GC], nos. 30562/04 and 30566/04, § 115, ECHR 2008). 183. If the Court considered that bulk interception activities may be justified under the Convention, the applicant submitted that robust minimum safeguards were imperative. The factors outlined in Roman Zakharov (cited above, § 238) could serve as an initial framework, but untargeted surveillance entailed elevated privacy risks and required these standards to be adapted. 184. In particular, the main elements of the regime should be set out in sufficient detail in statute law. That would ensure that it is the representative of the people who strike the balance between the competing interests. 185. As regards prior authorisation, while it accepted that the body entrusted with this task in Sweden is a judicial one, the applicant invited the Court to move one step further in its case-law and hold that prior authorisation must always be judicial. 186. In addition, in the applicant’s view, the authorising body should be capable of verifying the existence of a reasonable suspicion in relation to any person singled out or targeted. The applicant found unconvincing the Chamber’s departure, in the present case and in Big Brother Watch and Others v. the United Kingdom, nos. 58170/13 and 2 others, 13 September 2018, from this allegedly established requirement. The use of personalised selectors to single out and collect data on an individual, albeit in the bulk interception context, should be subject to the same threshold as applied to targeted interception. Otherwise, such selectors can be used as a work-around method for targeting individuals. 187. If there are no predefined targets, on the other hand, the authorising body should be capable of verifying that personal data is used in selectors only to the extent that it is material to a narrowly specified foreign intelligence objective. The latter is necessary because the use of selectors relating to specific individuals exposes them to distinct privacy risks, including about intimate matters and opinions. 188. In the applicant’s view, furthermore, the authorising judicial body should be provided with an indication of how the data will be analysed and used (for example, via pattern-based or subject-based analysis, and whether profiles of individuals will be compiled). 189. As regards supervision at the stages of carrying out the surveillance activities and after they have been terminated, the applicant accepted that the Swedish oversight bodies meet the requirement of sufficient independence from the executive. 190. However, the oversight body must be vested with sufficient powers to issue legally binding decisions, including stopping and remedying breaches and seeking the liability of those responsible for such breaches. It should have access to classified documents and its functioning should be open to public scrutiny. The supervision powers should concern both content and communications data and should be exercised at the stages when collected communications are subject to automated computer analysis, where a human analyst works on them and where information is communicated to national authorities, foreign Governments or international organisations. Storage of data at each stage should also be supervised. 191. In the applicant’s view, in addition, individuals must dispose of effective remedies which may take three forms: post-fact notification of the subject of surveillance, a possibility to request information about the surveillance or the existence of a body that can examine complaints without requiring the individual to submit evidence. 192. As regards transmitting intercepted material to foreign actors, the applicant underlined that Contracting States do not have unfettered discretion as they cannot outsource data processing and analysis in such a manner as to avoid responsibility under the Convention. The applicant considered that the minimum standards must include accessible legal provisions, clear legal conditions for sharing, including a duty to take reasonable steps to ensure that the receiving party protects the data with similar safeguards as those applicable at home and sufficient supervisory and remedial mechanisms. (ii) The applicant’s analysis of the impugned Swedish regime 193. Applying these standards to the impugned Swedish regime, the applicant stated that the general scope of application of the FRA’s powers is sufficiently constrained with the exception of the wide discretion it enjoys regarding its development activities. However, the applicant expressed concern that since 1 January 2013 the Security Police and the National Operative Department of the Police Authority (the “NOA”) had been empowered to issue tasking directives for signals intelligence, and that as of 1 March 2018, the Security Police might be granted direct access to the FRA’s databases with analysis material. The risk of signals intelligence being used outside the scope of foreign intelligence activities must be sufficiently contained by clear legal provisions and effective supervision. 194. The applicant also alleged that while warrants under the Swedish Signals Intelligence Act have a clear expiry date, there is no requirement that a warrant must be cancelled if collection of communication under the warrant ceases to be necessary. 195. The applicant further considered that the scope of judicial review by the authorising body in Sweden, the Foreign Intelligence Court, was too narrow to be effective. In particular, the existence of a reasonable suspicion in relation to a person who is singled out is not verified and the “exceptional importance” criterion, justifying selectors relating directly to an individual, only refers to selectors employed in the automated collection of data, not to the stage when the collected data is further searched. Also, the Foreign Intelligence Court is not required to review the intended subsequent use of the collected data and, indeed, the warrant request does not specify how the data will be analysed – for example, via subject-based data mining or through compilation of profiles of individuals. 196. As regards storing, accessing, examining, using and destroying intercepted data, the applicant identified two major flaws in the Swedish system: lack of legal obligation for the FRA to keep detailed records of the interception, use and communication of data, for which it had been repeatedly criticised by the Swedish Data Protection Authority, and lack of rules specifically adapted to bulk interception as opposed to general rules on data processing. The applicant was further concerned that as of 1 March 2018 the Security Police may be granted direct access to FRA’s databases with analysis material. 197. The applicant also alleged that legal persons did not enjoy adequate protection since the FRA Data Processing Act only applies to intercept material containing personal data. This allegedly resulted in a situation where material not containing personal data may be kept forever and used for purposes incompatible with the original purpose of collection. 198. The applicant criticised the following features of the existing supervision system. First, while the Inspectorate may decide that an operation shall cease or that the collected intelligence must be destroyed if it finds incompatibility with a warrant granted by the Foreign Intelligence Court, it does not have the power to issue binding decisions where the warrant is deemed unlawful. The Inspectorate cannot grant compensation or seek the liability of those responsible for breaches. Second, neither the Data Protection Authority, nor the Chancellor of Justice or the Ombudsmen may issue legally binding decisions. The Data Protection Authority may only apply to the Administrative Court in Stockholm to have illegally processed data destroyed. Furthermore, none of the complaints that have been submitted to the Chancellor and the Ombudsmen in relation to the FRA’s activities has been successful. Those bodies are not specialised in the FRA’s activities and do not possess the knowledge and capacity to supervise them effectively. 199. The applicant made the following submissions as regards the remedies available under the impugned Swedish regime. First, in its view the notification provided for under section 11(a) of the Signals Intelligence Act only concerns natural persons, not organisations, and may be disapplied if required for reasons of secrecy, which has happened invariably in practice. This remedy was therefore “theoretical and illusory”. The possibility to request the FRA to inform an individual whether personal data concerning him or her had been processed was also subject to the secrecy rule and the Administrative Court that examines ensuing appeals would not have access to secret documents and would be unable to review the FRA’s assessment on whether secrecy applies. This remedy too is unavailable to legal persons as the applicant. Second, the applicant referred to powers of the IPT in the United Kingdom to hear complaints of unlawful interception without the need for the complainant to prove that they had been subject to surveillance. The IPT, an independent judicial body, had access to secret documents, could take binding decisions and award compensation. Its decisions were published. The applicant submitted that a similar remedy was lacking in Sweden. Third, as regards the possibility under Swedish law to ask the Inspectorate to investigate whether an individual’s communications have been intercepted, the applicant noted that the Inspectorate did not inform the individual concerned of its findings and only sent standardised replies that no unlawful surveillance had taken pace. The applicant reiterated their view that the Inspectorate had no power to control compliance with the law and the Constitution and could not order the payment of compensation. Fourth, the applicant considered that seeking compensation from the Chancellor of Justice was not an effective remedy because: (i) the individual bears the burden to prove that there had been unlawful surveillance; (ii) compensation without erasing the unlawfully processed data could not be regarded as an effective remedy; (iii) to date the Chancellor, who enjoys discretion as to which complaints to review, had dismissed all complaints concerning the FRA’s activities; (iv) the Government had not shown the effectiveness of this remedy, seeing that it is unclear what action must be undertaken by the Chancellor upon receipt of a report from the Inspectorate informing about actions of the FRA that may give rise to a claim of damages: in particular, if the Chancellor were to provide the individual with an opportunity to claim damages, that would require advising him or her of the unlawful conduct of the FRA which could be precluded by secrecy. Fifth, in the absence of notification or access to documents it is virtually impossible for an individual to discharge the burden of proof in a civil action for damages. Sixth, the Ombudsmen could not order any redress and no examples of the effectiveness of this remedy have been shown. Seventh, the procedure according to which the FRA could correct or destroy unlawfully processed personal data was dependent on the individual’s knowledge that data had been processed and was ineffective due to the secrecy requirement. Also, the Administrative Court has never received applications form the Data Protection Authority seeking the erasure of unlawfully processed data. Finally, the possibility to seek prosecution was also dependent on the individual knowing of relevant wrongdoing and thus ineffective. 200. On the issue of transfers of intercepted data to foreign third parties, the applicant submitted that the deficiencies in the Swedish legal regime and practice were glaring. The legal limitations on such transfers consisted of nothing more than a vague and broadly defined obligation to act in the national interest. There was no requirement that possible harm to the individual is to be taken into account or that the recipient is to be required to protect the data with similar safeguards as those applicable in Sweden. 201. The applicant disagreed with the finding of the Chamber that the above shortcomings were counterbalanced by the supervisory mechanisms of the Swedish system. It considered that this supervision was inadequate and in any event did not cover the transfer of intercepted data to foreign parties. The FRA was merely required to inform the Inspectorate of the principles governing its cooperation with foreign parties, identify the countries or international organisations to which data was transferred and provide general details of operations. As the Inspectorate monitors the FRA’s activities for compliance with existing legal requirements and the law allows excessive discretion to the FRA in this area, even the most stringent policing by the Inspectorate could do little to provide safeguards against abuse. In the applicant’s view, the arrangements described above cannot constitute a practice compatible with the Convention as they allow to simply outsource otherwise unlawful activities without appropriate limits safeguarding fundamental rights. (b) The Government 202. The Government submitted that the purpose of signals intelligence was to obtain information and identify phenomena of relevance for foreign intelligence. Foreign intelligence was essential for Sweden’s national security and also relevant with regard to Sweden’s positive obligations under the Convention to protect the lives and safety of the public. 203. In the Government’s view, owing to the fact that the Court’s case-law setting out minimum safeguards for secret surveillance measures concerns, with the exception of the present case and Big Brother Watch, criminal investigations, some of the minimum safeguards required by the Court presuppose a link to a certain individual or to a certain place. This is very different from signals intelligence, which cannot be used to investigate criminal offences and one of the duties of the Foreign Intelligence Court is to ensure that it is not so used. Signals intelligence as part of foreign intelligence may in many cases target specific individuals’ communications but the individuals are most often not of interest per se : they are only carriers of information. 204. It was necessary, therefore, to adapt the relevant requirements, including by reformulating some of the criteria set out in the Court’s case-law as follows: introducing the criterion “the circumstances in which the measures may be used” instead of “the nature of the offences” and “categories of persons targeted”. Also, account must be taken of the fact that national security threats are by their nature variable and difficult to define in advance. 205. The Government strongly disagreed with the applicant who had claimed, on the basis of Roman Zakharov (cited above) and Szabó and Vissy v. Hungary (no. 37138/14, 12 January 2016), that the existence of a reasonable suspicion was required at least when selectors linked to a specific individual were used. In the Government’s view no such requirement could be deducted from the above-cited case-law. The Government supported the Chamber’s reasoning in paragraph 317 in Big Brother Watch, where the Court held that the requirements of “reasonable suspicion” and “subsequent notification” are incompatible with bulk interception regimes. 206. The Government further asserted that bulk interception in Sweden was regulated by a comprehensive legal regime that was based on published legal provisions and provided for significant safeguards, including independent supervision, covering both surveillance activities related to communications data and to the content of communications. The law clearly delimited the scope of the surveillance activities, the mandate given to the competent authorities in this regard and the manner of its exercise. 207. As regards the FRA’s development activities, the Government emphasised that they are rigorously regulated and subject to all substantive and procedural requirements applicable to signals intelligence in general. In development activities, which are crucial to permit the FRA to adjust its tools, systems and methods to an ever-changing signals environment and technical developments, it is the flow of traffic and the systems through which information is transmitted that are of interest. To maintain the FRA’s capabilities, it would be far too restrictive if development activities were only allowed for the eight purposes that circumscribe signals intelligence. 208. There was, furthermore, a prior authorisation procedure before the Foreign Intelligence Court, whose president is a permanent judge and the other members are appointed by the Government on four-year terms. In the exceptional cases of urgency when the FRA may itself grant a signals intelligence permit, that court must be immediately notified and it may modify or revoke the permit, with the consequence that collected data must be destroyed. If the permit granted by the FRA, not by the court, contains access to certain communications bearers, such access can only be realised by the Swedish Foreign Intelligence Inspectorate which will have the possibility to estimate the relevant legal aspects. 209. The Foreign Intelligence Court holds public hearings except when required by secrecy considerations. The Government submitted that the latter limitation on transparency was justified and was compensated by safeguards, such as the presence of a privacy protection representative at the court’s private hearings. The representative defends the public interest, is given full access to case documents and can make statements. He or she is a permanent judge or a former permanent judge or a member of the Swedish Bar Association. 210. The Government emphasised that the FRA must seek a permit in respect of each mission and must specify the assignment, the bearers to which access is sought and the selectors or at least the categories of selectors to be used. The court examines not only the formal lawfulness but also the proportionality to the expected interference. The permit must specify all parameters, including the conditions needed to limit such interference. 211. As regards safeguards on the duration of the interception, Swedish law limited it to six months, subject to extension following full review by the Foreign Intelligence Court. Also, interception is discontinued if a tasking directive is revoked or expires, if interception is not in accordance with the permit and if it is no longer needed. 212. Adequate safeguards also exist in respect of the procedures for storing, accessing, examining, using and destroying intercepted data. These safeguards include limiting processing to what is adequate and relevant to its purpose, vetting of staff and their duty of confidentiality and sanctions in case of mismanagement of data. Also, intelligence must be destroyed immediately in a number of circumstances, including, inter alia, where it concerns constitutionally protected media sources or legal professional privilege in relations between a criminal suspect and his lawyer. Moreover, if the intercepted communications prove to be entirely domestic, the intercepted data must also be destroyed. 213. As regards the conditions for communicating the intercepted data to other parties, the FRA has a regulated obligation to report to the Swedish authorities concerned but ensures that personal data is only reported if it is of relevance for the purposes for which foreign intelligence may be conducted. Compliance with this requirement is monitored by the Foreign Intelligence Inspectorate. 214. The Government emphasised that despite the provision allowing the FRA to give direct access to its completed intelligence reports to the Government Offices, the Armed Forces, the Security Police and three other bodies, no decisions permitting such access have yet been taken by the FRA. The Government clarified in addition that, since 1 March 2018, under section 15 of the FRA Personal Data Protection Act, the Security Police and the Armed Forces may be granted direct access to data that constitutes the analysis results in a data compilation for analyses, so as to allow these two authorities to be able to make strategic assessments of terrorist threats. This changes nothing with regard to the prohibition to use signals intelligence within foreign intelligence for the purposes of investigating criminal offences. 215. Finally, with regard to communication of personal data to other States and to international organisations, the Government disagreed with the Chamber which had found shortcomings in the relevant legal regime (see paragraph 150 of the Chamber judgment). They submitted, inter alia, that the FRA must report to the Ministry of Defence before it establishes and maintains cooperation with other states and international organisations and inform the ministry about important issues that occur in the process of such cooperation. Furthermore, the FRA must inform the Swedish Foreign Intelligence Inspectorate of the principles that apply to its relevant cooperation and provide details of the countries and organisations with which such cooperation takes place. When cooperation is established, the FRA must inform the Inspectorate of the scope of the cooperation and, where deemed warranted, of the results, experience and continued direction of the cooperation. 216. The Government also pointed to the fact that in international cooperation data is exclusively communicated to parties that are themselves engaged in foreign intelligence, which meant that it is in the recipient’s interest to protect the data received. The trust between the parties is based on a mutual interest in maintaining the security of the data. Also, the FRA’s general guidelines stipulate that international cooperation is conditional on the receiving State respecting Swedish legislation. Foreign partners receive information and training on the relevant content of Swedish legislation. As the Inspectorate has a clear mandate to control the FRA’s international cooperation, any change to its internal guidelines would not go unnoticed. There are therefore clear safeguards against circumventing Swedish law. 217. In the Government’s view, Sweden’s system of supervision on signals intelligence offered important safeguards. The Foreign Intelligence Inspectorate is independent, has access to all relevant documents, examines the selectors used and has the power to decide that data collection must cease or the data collected be destroyed if the terms of the relevant permit have not been complied with. The Inspectorate also ensures that the FRA is only provided access to communications bearers insofar as such access is covered by a permit. The Inspectorate submits annual public reports and is subject to audit by the National Audit Office and supervision by the Parliamentary Ombudsmen and the Chancellor of Justice. As regards personal data, the Swedish Data Protection Authority has general supervisory functions. In the Government’s view, this kind of supervision by independent non-judicial bodies is adequate and in conformity with the Court’s case-law. 218. The Government submitted that between 2009 and 2018 the Inspectorate had conducted 113 audits of the FRA resulting in 18 opinions. At least seventeen of these audits served, inter alia, to control that the FRA was using selectors in a way compatible with the permit issued by the Foreign Intelligence Court and at least nine audits included issues of data destruction. A number of audits also concerned the FRA’s handling of personal data. Only very few observations or opinions ensued from the audits. During the same time period, the Inspectorate carried out 141 controls at the request of an individual on whether his or her communications had been the subject of unlawful signals intelligence. None of those showed improper signals collection. There were also several thematic reviews of the FRA’s activities, such as on compliance with the limits imposed by the permits. 219. The Government also submitted that there are several remedies by which an individual may initiate an examination of the lawfulness of measures taken during the operation of the signals intelligence system. These include a request to the Inspectorate which may result in notification whether anything improper had taken place, a request to the FRA on whether personal data concerning him or her has been processed, applications to the Parliamentary Ombudsmen, the Chancellor of Justice and the Data Protection Authority, an action for damages and reporting a matter for prosecution. Some of these remedies are not dependent on prior notification being made to an individual. While systematic notification was impossible, it is significant that the FRA is obliged to inform a natural person if selectors directly related to him or her have been used, except where secrecy applies. 220. The Government also stated that no distinction is made in Swedish law on bulk interception between content and communications data, all safeguards applying equally to both. In practice, using communications data to discover unknown threats requires putting together various pieces of such data to establish a picture from which conclusions can be drawn. This requires that the selectors used for intercepting communications data are less specific than those used for the content of communications and that data is available for examination by an analyst over a period of time. No other differences exist. 221. In conclusion, the Government submitted that the impugned regime on signals intelligence within foreign intelligence reveals no significant shortcomings in its structure and operation. The risk of interference with privacy is minimised and sufficient guarantees against arbitrariness are in place. The regime as a whole is lawful and proportionate to the legitimate aim of protecting national security. Third intervening parties (a) The Government of the Republic of Estonia 222. The Estonian Government considered that the criteria for the assessment of the Convention compatibility of secret surveillance regimes, as developed in the Court’s case-law, needed adaptation to reflect the specific nature of bulk interception of communications as a foreign intelligence activity. The differences between such an activity and surveillance in the criminal investigation context must be taken into account. Foreign intelligence aims at detecting threats to national security and is therefore broader in its scope. Also, it is a long-term activity that requires a higher level of secrecy over a very long period of time. 223. On this basis, the Estonian Government, referring to the criteria for assessment used in Roman Zakharov (cited above, § 231), agreed with the Chamber that the “nature of the offences” and “reasonable suspicion” criteria were not appropriate and stated that, instead of the “categories of people” criterion, domestic law should indicate “the fields in which bulk interception of cross-border communications may be used to gather intelligence”. As to notification of affected persons, in the view of the intervening Estonian Government no such obligation should be imposed because of the importance of secrecy in foreign intelligence. (b) The Government of the French Republic 224. The French Government, emphasising the importance of bulk interception activities for the identification of unknown threats, considered that the criteria for assessing their Convention compatibility, as developed in Weber and Saravia v. Germany ((dec.), no. 54934/00, ECHR 2006 ‑ XI) and Roman Zakharov (cited above), were relevant in the present case. However, in their view, there should be no “reasonable suspicion” requirement, having regard to the specific nature of bulk interception operations, which are different from the secret surveillance of a specific individual. 225. The French Government further considered that States enjoy a wide margin of appreciation in operating bulk interception regimes and that the assessment whether the applicable guarantees against abuse were sufficient must always be made in concreto, having regard to the relevant legislation seen as a whole. The Chamber in the present case had done exactly that, noting that despite the fact that some improvements were desirable, the Swedish system as a whole did not disclose significant shortcomings. However, in the case of Big Brother Watch and Others (cited above), the Chamber had applied a stricter scrutiny and unjustifiably found violations of Articles 8 and 10 of the Convention. The French Government advocated against the latter approach. In particular, they considered that a bulk interception regime that did not include judicial pre-authorisation was compatible with Article 8 as long as there was a mechanism for a posteriori supervision by an independent body. 226. The French Government also expressed the view, supported by references to case-law, that the interception and processing of communications data interfered with privacy rights in a less significant manner than the interception and processing of the content of communications and that, therefore, should not be subject to the same guarantees for the protection of the right to private life. 227. As regards intelligence sharing, the French Government stressed the importance of secrecy and the fact that the procedures and guarantees applied can vary from one State to another. They further elaborated on several relevant criteria, in particular, in the context of receiving and using intercepted data from foreign partners. (c) The Government of the Kingdom of the Netherlands 228. The Government of the Kingdom of the Netherlands submitted that bulk interception was necessary to identify hitherto unknown threats to national security. In order to protect national security, intelligence services needed the tools to investigate emerging threats in a timely and effective manner. For this they needed the powers necessary to enable them to detect and/or prevent not only terrorist activities (such as planning of attacks, recruitment, propaganda and funding), but also intrusive State or non-State actors’ cyber activities aimed at disrupting democracy (for example, by influencing national elections or obstructing investigations by national and international organisations). An example of this was the attempted hacking of the investigation of the use of chemical weapons in Syria by the Organisation for the Prohibition of Chemical Weapons in The Hague. Moreover, the increasing dependency of vital sectors on digital infrastructures meant that such sectors, including water management, energy, telecoms, transport, logistics, harbours and airports, were increasingly vulnerable to cyber-attacks. The consequences of disruption in such sectors would have a deep impact on society, far beyond the substantial monetary damage. 229. A complicating factor in all of this was the development of new means of digital communication and the exponential increase of data that was transmitted and stored globally. In many instances the nature and origin of a particular threat was unknown and the use of targeted interception was not feasible. However, while bulk interception was not as tightly defined as targeted interception, it was never completely untargeted. Rather, it was applied for specific aims. 230. In the intervening Government’s view, there was no need for additional or updated minimum requirement; the minimum safeguards; those previously identified by the Court were sufficiently robust and “future proof”. The additional requirements proposed by the applicant – in particular, the requirement to demonstrate “reasonable suspicion” – would unacceptably reduce the effectiveness of the intelligence services without providing any meaningful additional protection of individuals’ fundamental rights. 231. Furthermore, according to the intervening Government, it was still relevant to distinguish between content and communications data, as the content of communications was likely to be more sensitive than communications data. The intervening Government also agreed with the Chamber that it was wrong automatically to assume that bulk interception constituted a greater intrusion into the private life of an individual than targeted interception, since once targeted interception takes place it was likely that all, or nearly all, of the intercepted communications would be analysed. This was not true of bulk interception, where restrictions on the examination and use of data determined the intrusiveness of the interception on the individuals’ fundamental rights. 232. Finally, the intervening Government submitted that any requirement to explain or substantiate selectors or search criteria in the authorisation would seriously restrict the effectiveness of bulk interception in view of the high degree of uncertainty regarding the source of a threat. Ex post oversight provided sufficient safeguards. (d) The Government of the Kingdom of Norway 233. The Norwegian Government submitted that, with regard to the decision of States to introduce and operate some form of bulk interception regime for national security purposes, the margin of appreciation had to be wide. This was because intelligence services had to keep pace with the rapid advances in information and communications technology. Hostile actors changed their devices and digital identities at a pace which made it difficult to track them over time. It was also difficult to discover and counteract hostile cyber operations in a timely manner without tools capable of discovering anomalies and relevant signatures. It was therefore without doubt that modern capacities like bulk interception were needed in order to find unknown threats operating in the digital domain and to enable the services to discover and follow relevant intelligence threats. 234. As a consequence, the Court’s oversight should be based on an overall assessment of whether the procedural safeguards against abuse which are in place are sufficient and adequate. It should therefore avoid enumerated and absolute requirements. It should also not apply criteria that would undermine indirectly the wide margin of appreciation afforded to States in deciding to operate a bulk interception regime for national security reasons. A “reasonable suspicion” or “subsequent notification” requirement would have this effect. 235. Finally, the Norwegian Government encouraged the Court to refrain from importing concepts and criteria from the CJEU. First of all, at the relevant time nineteen Council of Europe Contracting States were not members of the European Union. Secondly, while the Convention and the Charter of Fundamental Rights had many features in common, there were also differences, most notably Article 8 of the Charter which contained a right to the protection of personal data. The CJEU also formulated “proportionality” differently, using a “strict necessity” method which did not compare to that used by the Court. The Court’s assessment (a) Preliminary remarks 236. The present complaint concerns the bulk interception of cross-border communications by the intelligence services. While it is not the first time the Court has considered this kind of surveillance (see Weber and Saravia and Liberty and Others, both cited above), in the course of the proceedings it has become apparent that the assessment of any such regime faces specific difficulties. In the current, increasingly digital, age the vast majority of communications take digital form and are transported across global telecommunications networks using a combination of the quickest and cheapest paths without any meaningful reference to national borders. Surveillance which is not targeted directly at individuals therefore has the capacity to have a very wide reach indeed, both inside and outside the territory of the surveilling State. Safeguards are therefore pivotal and yet elusive. Unlike the targeted interception which has been the subject of much of the Court’s case-law, and which is primarily used for the investigation of crime, bulk interception is also – perhaps even predominantly – used for foreign intelligence gathering and the identification of new threats from both known and unknown actors. When operating in this realm, Contracting States have a legitimate need for secrecy which means that little if any information about the operation of the scheme will be in the public domain, and such information as is available may be couched in terminology which is obscure and which may vary significantly from one State to the next. 237. While technological capabilities have greatly increased the volume of communications traversing the global Internet, the threats being faced by Contracting States and their citizens have also proliferated. These include, but are not limited to, global terrorism, drug trafficking, human trafficking and the sexual exploitation of children. Many of these threats come from international networks of hostile actors with access to increasingly sophisticated technology enabling them to communicate undetected. Access to such technology also permits hostile State and non-State actors to disrupt digital infrastructure and even the proper functioning of democratic processes through the use of cyberattacks, a serious threat to national security which by definition exists only in the digital domain and as such can only be detected and investigated there. Consequently, the Court is required to carry out its assessment of Contracting States’ bulk interception regimes, a valuable technological capacity to identify new threats in the digital domain, for Convention compliance by reference to the existence of safeguards against arbitrariness and abuse, on the basis of limited information about the manner in which those regimes operate. (b) The existence of an interference 238. The Government considered that there was no interference with the applicant’s Article 8 rights since it did not belong to a group of persons or entities targeted by the relevant legislation and in view of the fact that it was highly unlikely that the applicant’s communications would be subject to analytical examination, there allegedly being no interference with Article 8 rights at the preceding stages of bulk interception of communications as it functioned in Sweden. 239. The Court views bulk interception as a gradual process in which the degree of interference with individuals’ Article 8 rights increases as the process progresses. Bulk interception regimes may not all follow exactly the same model, and the different stages of the process will not necessarily be discrete or followed in strict chronological order. Nevertheless, subject to the aforementioned caveats, the Court considers that the stages of the bulk interception process which fall to be considered can be described as follows: (a) the interception and initial retention of communications and related communications data (that is, the traffic data belonging to the intercepted communications); (b) the application of specific selectors to the retained communications/related communications data; (c) the examination of selected communications/related communications data by analysts; and (d) the subsequent retention of data and use of the “final product”, including the sharing of data with third parties. 240. At what the Court has taken to be the first stage, electronic communications (or “packets” of electronic communications) will be intercepted in bulk by the intelligence services. These communications will belong to a large number of individuals, many of whom will be of no interest whatsoever to the intelligence services. Some communications of a type unlikely to be of intelligence interest may be filtered out at this stage. 241. The initial searching, which is mostly automated, takes place at what the Court has taken to be the second stage, when different types of selectors, including “strong selectors” (such as an email address) and/or complex queries are applied to the retained packets of communications and related communications data. This may be the stage where the process begins to target individuals through the use of strong selectors. 242. At what the Court has taken to be the third stage, intercept material is examined for the first time by an analyst. 243. What the Court has taken to be the final stage is when the intercept material is actually used by the intelligence services. This may involve the creation of an intelligence report, the sharing of the material with other intelligence services within the intercepting State or even the transmission of material to foreign intelligence services. 244. The Court considers that Article 8 applies at each of the above stages. While the initial interception followed by the immediate discarding of parts of the communications does not constitute a particularly significant interference, the degree of interference with individuals’ Article 8 rights will increase as the bulk interception process progresses. In this regard, the Court has clearly stated that even the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116), and that the need for safeguards will be all the greater where the protection of personal data undergoing automatic processing is concerned (see S. and Marper, cited above, § 103). The fact that the stored material is in coded form, intelligible only with the use of computer technology and capable of being interpreted only by a limited number of persons, can have no bearing on that finding (see Amann v. Switzerland [GC], no. 27798/95, § 69, ECHR 2000 ‑ II and S. and Marper, cited above, §§ 67 and 75). Finally, at the end of the process, where information about a particular person will be analysed or the content of the communications is being examined by an analyst, the need for safeguards will be at its highest. This approach of the Court is in line with the finding of the Venice Commission, which in its report on the Democratic Oversight of Signals Intelligence Agencies considered that in bulk interception the main interference with privacy occurred when stored personal data were processed and/or accessed by the agencies (see paragraphs 86-91 above). 245. Thus, the degree of interference with privacy rights will increase as the process moves through the different stages. In examining whether this increasing interference was justified, the Court will carry out its assessment of the relevant Swedish regime on the basis of this understanding of the nature of the interference. (c) Whether the interference was justified (i) General principles relating to secret measures of surveillance, including the interception of communications 246. Any interference with an individual’s Article 8 rights can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which that paragraph refers and is necessary in a democratic society in order to achieve any such aim (see Roman Zakharov, cited above, § 227; see also Kennedy, cited above, § 130). The wording “in accordance with the law” requires the impugned measure to have some basis in domestic law (as opposed to a practice which does not have a specific legal basis – see Heglas v. the Czech Republic, no. 5935/02, § 74, 1 March 2007). It must also be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must therefore be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov, cited above, § 228; see also, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, ECHR 2000-V, § 52; S. and Marper, cited above, § 95; and Kennedy, cited above, § 151). 247. The meaning of “foreseeability” in the context of secret surveillance is not the same as in many other fields. In the special context of secret measures of surveillance, such as the interception of communications, “foreseeability” cannot mean that individuals should be able to foresee when the authorities are likely to resort to such measures so that they can adapt their conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on secret surveillance measures, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Roman Zakharov, cited above, § 229; see also Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82; Leander, cited above, § 51; Huvig v. France, 24 April 1990, § 29, Series A no. 176 ‑ B; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions 1998 ‑ V; Rotaru, cited above, § 55; Weber and Saravia, cited above, § 93; and Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 75, 28 June 2007). Moreover, the law must indicate the scope of any discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see Roman Zakharov, cited above, § 230; see also, among other authorities, Malone, cited above, § 68; Leander, cited above, § 51; Huvig, cited above, § 29; and Weber and Saravia, cited above, § 94). 248. In cases where the legislation permitting secret surveillance is contested before the Court, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements. The “quality of law” in this sense implies that the domestic law must not only be accessible and foreseeable in its application, it must also ensure that secret surveillance measures are applied only when “necessary in a democratic society”, in particular by providing for adequate and effective safeguards and guarantees against abuse (see Roman Zakharov, cited above, § 236; and Kennedy, cited above, § 155). 249. In this regard it should be reiterated that in its case-law on the interception of communications in criminal investigations, the Court has developed the following minimum requirements that should be set out in law in order to avoid abuses of power: (1) the nature of offences which may give rise to an interception order; (2) a definition of the categories of people liable to have their communications intercepted; (3) a limit on the duration of interception; (4) the procedure to be followed for examining, using and storing the data obtained; (5) the precautions to be taken when communicating the data to other parties; and (6) the circumstances in which intercepted data may or must be erased or destroyed (see Huvig, cited above, § 34; Valenzuela Contreras, cited above, § 46; Weber and Saravia, cited above, § 95; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 76). In Roman Zakharov (cited above, § 231) the Court confirmed that the same six minimum safeguards also applied in cases where the interception was for reasons of national security; however, in determining whether the impugned legislation was in breach of Article 8, it also had regard to the arrangements for supervising the implementation of secret surveillance measures, any notification mechanisms and the remedies provided for by national law (see Roman Zakharov, cited above, § 238). 250. Review and supervision of secret surveillance measures may come into play at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual’s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his or her own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding his or her rights. In a field where abuse in individual cases is potentially so easy and could have such harmful consequences for democratic society as a whole, the Court has held that it is in principle desirable to entrust supervisory control to a judge, judicial control offering the best guarantees of independence, impartiality and a proper procedure (see Roman Zakharov, cited above, § 233; see also Klass and Others, cited above, §§ 55 and 56). 251. As regards the third stage, after the surveillance has been terminated, the question of subsequent notification of surveillance measures is a relevant factor in assessing the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of surveillance powers. There is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their legality retrospectively (see Roman Zakharov, cited above, § 234; see also Klass and Others v, cited above, § 57; and Weber and Saravia, cited above, § 135) or, in the alternative, unless any person who suspects that he or she has been subject to surveillance can apply to courts, whose jurisdiction does not depend on notification to the surveillance subject of the measures taken (see Roman Zakharov, cited above, § 234; see also Kennedy, cited above, § 167). 252. As to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, the Court has recognised that the national authorities enjoy a wide margin of appreciation in choosing how best to achieve the legitimate aim of protecting national security (see Weber and Saravia, cited above, § 106). 253. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security (and other essential national interests) may undermine or even destroy the proper functioning of democratic processes under the cloak of defending them, the Court must be satisfied that there are adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, § 232; see also Klass and Others, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, § 106; and Kennedy, cited above, §§ 153 and 154). (ii) Whether there is a need to develop the case-law 254. In Weber and Saravia and kingdom and Others (cited above) the Court accepted that bulk interception regimes did not per se fall outside the States’ margin of appreciation. In view of the proliferation of threats that States currently face from networks of international actors, using the Internet both for communication and as a tool, and the existence of sophisticated technology which would enable these actors to avoid detection, the Court considers that the decision to operate a bulk interception regime in order to identify threats to national security or against essential national interests is one which continues to fall within this margin. 255. In both Weber and Saravia and Liberty and Others (cited above) the Court applied the above-mentioned six minimum safeguards developed in its case-law on targeted interception. However, while the bulk interception regimes considered in those cases were on their face similar to that in issue in the present case, both cases are now more than ten years old, and in the intervening years technological developments have significantly changed the way in which people communicate. Lives are increasingly lived online, generating both a significantly larger volume of electronic communications, and communications of a significantly different nature and quality, to those likely to have been generated a decade ago. The scope of the surveillance activity considered in those cases would therefore have been much narrower. 256. This is equally so with related communications data. It appears that greater volumes of communications data are currently available on an individual relative to content, since every piece of content is surrounded by multiple pieces of communications data. While the content might be encrypted and, in any event, may not reveal anything of note about the sender or recipient, the related communications data could reveal a great deal of personal information, such as the identities and geographic location of the sender and recipient and the equipment through which the communication was transmitted. Furthermore, any intrusion occasioned by the acquisition of related communications data will be magnified when they are obtained in bulk, since they are now capable of being analysed and interrogated so as to paint an intimate picture of a person through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who a person interacted with. 257. More importantly, however, in Weber and Saravia and Liberty and Others (both cited above), the Court did not expressly address the fact that it was dealing with surveillance of a different nature and scale from that considered in previous cases. Nonetheless, targeted interception and bulk interception are different in a number of important respects. 258. To begin with, bulk interception is generally directed at international communications (that is, communications physically travelling across State borders), and while the interception and even examination of communications of persons within the surveilling State might not be excluded, in many cases the stated purpose of bulk interception is to monitor the communications of persons outside the State’s territorial jurisdiction, which could not be monitored by other forms of surveillance. For example, the German system aims only to monitor foreign telecommunications outside of German territory (see paragraph 137 above). 259. Moreover, as already noted, the purposes for which bulk interception may be employed would appear to be different. In so far as the Court has considered targeted interception, it has, for the most part, been employed by respondent States for the purposes of investigating crime. However, while bulk interception may be used to investigate certain serious crimes, Council of Europe member States operating a bulk interception regime appear to use it for the purposes of foreign intelligence gathering, the early detection and investigation of cyberattacks, counter-espionage and counter-terrorism (see paragraphs 131-146 above). 260. While bulk interception is not necessarily used to target specified individuals, it evidently can be – and is – used for this purpose. However, when this is the case, the targeted individuals’ devices are not monitored. Rather, individuals are “targeted” by the application of strong selectors (such as their email addresses) to the communications intercepted in bulk by the intelligence services. Only those “packets” of the targeted individuals’ communications which were travelling across the bearers selected by the intelligence services will have been intercepted in this way, and only those intercepted communications which matched either a strong selector or complex query could be examined by an analyst. 261. As with any interception regime, there is of course considerable potential for bulk interception to be abused in a manner adversely affecting the right of individuals to respect for private life. While Article 8 of the Convention does not prohibit the use of bulk interception to protect national security and other essential national interests against serious external threats, and States enjoy a wide margin of appreciation in deciding what type of interception regime is necessary, for these purposes, in operating such a system the margin of appreciation afforded to them must be narrower and a number of safeguards will have to be present. The Court has already identified those safeguards which should feature in a Convention-compliant targeted interception regime. While those principles provide a useful framework for this exercise, they will have to be adapted to reflect the specific features of a bulk interception regime and, in particular, the increasing degrees of intrusion into the Article 8 rights of individuals as the operation moves through the stages identified in paragraph 239 above. (iii) The approach to be followed in bulk interception cases 262. It is clear that the first two of the six “minimum safeguards” which the Court, in the context of targeted interception, has found should be defined clearly in domestic law in order to avoid abuses of power (that is, the nature of offences which may give rise to an interception order and the categories of people liable to have their communications intercepted: see paragraph 249 above), are not readily applicable to a bulk interception regime. Similarly, the requirement of “reasonable suspicion”, which can be found in the Court’s case-law on targeted interception in the context of criminal investigations is less germane in the bulk interception context, the purpose of which is in principle preventive, rather than for the investigation of a specific target and/or an identifiable criminal offence. Nevertheless, the Court considers it imperative that when a State is operating such a regime, domestic law should contain detailed rules on when the authorities may resort to such measures. In particular, domestic law should set out with sufficient clarity the grounds upon which bulk interception might be authorised and the circumstances in which an individual’s communications might be intercepted. The remaining four minimum safeguards defined by the Court in its previous judgments — that is, that domestic law should set out a limit on the duration of interception, the procedure to be followed for examining, using and storing the data obtained, the precautions to be taken when communicating the data to other parties, and the circumstances in which intercepted data may or must be erased or destroyed — are equally relevant to bulk interception. 263. In its case-law on targeted interception, the Court has had regard to the arrangements for supervising and reviewing the interception regime (see Roman Zakharov, cited above, §§ 233-34). In the context of bulk interception the importance of supervision and review will be amplified, because of the inherent risk of abuse and because the legitimate need for secrecy will inevitably mean that, for reasons of national security, States will often not be at liberty to disclose information concerning the operation of the impugned regime. 264. Therefore, in order to minimise the risk of the bulk interception being abused, the Court considers that the process must be subject to “end-to-end safeguards”, meaning that, at the domestic level, an assessment should be made at each stage of the process of the necessity and proportionality of the measures being taken; that bulk interception should be subject to independent authorisation at the outset, when the object and scope of the bulk operation are being defined; and that the operation should be subject to supervision and independent ex post facto review. In the Court’s view, these are fundamental safeguards which will be the cornerstone of any Article 8 compliant bulk interception regime (see also the report of the Venice Commission, at paragraph 86 above, which similarly found that two of the most significant safeguards in a bulk interception regime were the authorisation and oversight of the process). 265. Turning first to authorisation, the Grand Chamber considers that while judicial authorisation is an “important safeguard against arbitrariness” it is not a “necessary requirement”. Nevertheless, bulk interception should be authorised by an independent body; that is, a body which is independent of the executive. 266. Furthermore, in order to provide an effective safeguard against abuse, the independent authorising body should be informed of both the purpose of the interception and the bearers or communication routes likely to be intercepted. This would enable the independent authorising body to assess the necessity and proportionality of the bulk interception operation and also to assess whether the selection of bearers is necessary and proportionate to the purposes for which the interception is being conducted. 267. The use of selectors – and strong selectors in particular – is one of the most important steps in the bulk interception process, as this is the point at which the communications of a particular individual may be targeted by the intelligence services. However, the Court notes that the intervening Government of the Netherlands have submitted that any requirement to explain or substantiate selectors or search criteria in the authorisation would seriously restrict the effectiveness of bulk interception (see paragraphs 228-232 above). In the United Kingdom, the IPT found that the inclusion of the selectors in the authorisation would “unnecessarily undermine and limit the operation of the warrant and be in any event entirely unrealistic” (see Big Brother Watch and Others, cited above, § 49). 268. Taking into account the characteristics of bulk interception (see paragraphs 258 and 259 above), the large number of selectors employed and the inherent need for flexibility in the choice of selectors, which in practice may be expressed as technical combinations of numbers or letters, the Court would accept that the inclusion of all selectors in the authorisation may not be feasible in practice. Nevertheless, given that the choice of selectors and query terms determines which communications will be eligible for examination by an analyst, the authorisation should at the very least identify the types or categories of selectors to be used. 269. Moreover, enhanced safeguards should be in place when strong selectors linked to identifiable individuals are employed by the intelligence services. The use of every such selector must be justified – with regard to the principles of necessity and proportionality – by the intelligence services and that justification should be scrupulously recorded and be subject to a process of prior internal authorisation providing for separate and objective verification of whether the justification conforms to the aforementioned principles. 270. Each stage of the bulk interception process – including the initial authorisation and any subsequent renewals, the selection of bearers, the choice and application of selectors and query terms, and the use, storage, onward transmission and deletion of the intercept material – should also be subject to supervision by an independent authority and that supervision should be sufficiently robust to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, § 232; see also Klass and Others, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, § 106; and Kennedy, cited above, §§ 153 and 154). In particular, the supervising body should be in a position to assess the necessity and proportionality of the action being taken, having due regard to the corresponding level of intrusion into the Convention rights of the persons likely to be affected. In order to facilitate this supervision, detailed records should be kept by the intelligence services at each stage of the process. 271. Finally, an effective remedy should be available to anyone who suspects that his or her communications have been intercepted by the intelligence services, either to challenge the lawfulness of the suspected interception or the Convention compliance of the interception regime. In the targeted interception context, the Court has repeatedly found the subsequent notification of surveillance measures to be a relevant factor in assessing the effectiveness of remedies before the courts and hence the existence of effective safeguards against the abuse of surveillance powers. However, it has acknowledged that notification is not necessary if the system of domestic remedies permits any person who suspects that his or her communications are being or have been intercepted to apply to the courts; in other words, where the courts’ jurisdiction does not depend on notification to the interception subject that there has been an interception of his or her communications (see Roman Zakharov, cited above, § 234; and Kennedy, cited above, § 167). 272. The Court considers that a remedy which does not depend on notification to the interception subject could also be an effective remedy in the context of bulk interception; in fact, depending on the circumstances it may even offer better guarantees of a proper procedure than a system based on notification. Regardless of whether material was acquired through targeted or bulk interception, the existence of a national security exception could deprive a notification requirement of any real practical effect. The likelihood of a notification requirement having little or no practical effect will be more acute in the bulk interception context, since such surveillance may be used for the purposes of foreign intelligence gathering and will, for the most part, target the communications of persons outside the State’s territorial jurisdiction. Therefore, even if the identity of a target is known, the authorities may not be aware of his or her location. 273. The powers and procedural guarantees an authority possesses are relevant in determining whether a remedy is effective. Therefore, in the absence of a notification requirement it is imperative that the remedy should be before a body which, while not necessarily judicial, is independent of the executive and ensures the fairness of the proceedings, offering, insofar as possible, an adversarial process. The decisions of such authority shall be reasoned and legally binding with regard, inter alia, to the cessation of unlawful interception and the destruction of unlawfully obtained and/or stored intercept material (see, mutatis mutandis, Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 120, ECHR 2006-VII and also Leander, cited above, §§ 81-83 where the lack of power to render a legally binding decision constituted a main weakness in the control offered). 274. In the light of the above, the Court will determine whether a bulk interception regime is Convention compliant by conducting a global assessment of the operation of the regime. Such assessment will focus primarily on whether the domestic legal framework contains sufficient guarantees against abuse, and whether the process is subject to “end-to-end safeguards” (see paragraph 264 above). In doing so, it will have regard to the actual operation of the system of interception, including the checks and balances on the exercise of power, and the existence or absence of any evidence of actual abuse (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 92). 275. In assessing whether the respondent State acted within its margin of appreciation (see paragraph 256 above), the Court would need to take account of a wider range of criteria than the six Weber safeguards. More specifically, in addressing jointly “in accordance with the law” and “necessity” as is the established approach in this area (see Roman Zakharov, cited above, § 236; and Kennedy, cited above, § 155), the Court will examine whether the domestic legal framework clearly defined: The grounds on which bulk interception may be authorised; The circumstances in which an individual’s communications may be intercepted; The procedure to be followed for granting authorisation; The procedures to be followed for selecting, examining and using intercept material; The precautions to be taken when communicating the material to other parties; The limits on the duration of interception, the storage of intercept material and the circumstances in which such material must be erased and destroyed; The procedures and modalities for supervision by an independent authority of compliance with the above safeguards and its powers to address non-compliance; The procedures for independent ex post facto review of such compliance and the powers vested in the competent body in addressing instances of non-compliance. 276. Despite being one of the six Weber criteria, to date the Court has not yet provided specific guidance regarding the precautions to be taken when communicating intercept material to other parties. However, it is now clear that some States are regularly sharing material with their intelligence partners and even, in some instances, allowing those intelligence partners direct access to their own systems. Consequently, the Court considers that the transmission by a Contracting State to foreign States or international organisations of material obtained by bulk interception should be limited to such material as has been collected and stored in a Convention compliant manner and should be subject to certain additional specific safeguards pertaining to the transfer itself. First of all, the circumstances in which such a transfer may take place must be set out clearly in domestic law. Secondly, the transferring State must ensure that the receiving State, in handling the data, has in place safeguards capable of preventing abuse and disproportionate interference. In particular, the receiving State must guarantee the secure storage of the material and restrict its onward disclosure. This does not necessarily mean that the receiving State must have comparable protection to that of the transferring State; nor does it necessarily require that an assurance is given prior to every transfer. Thirdly, heightened safeguards will be necessary when it is clear that material requiring special confidentiality – such as confidential journalistic material – is being transferred. Finally, the Court considers that the transfer of material to foreign intelligence partners should also be subject to independent control. 277. For the reasons identified at paragraph 256 above, the Court is not persuaded that the acquisition of related communications data through bulk interception is necessarily less intrusive than the acquisition of content. It therefore considers that the interception, retention and searching of related communications data should be analysed by reference to the same safeguards as those applicable to content. 278. That being said, while the interception of related communications data will normally be authorised at the same time the interception of content is authorised, once obtained they may be treated differently by the intelligence services. In view of the different character of related communications data and the different ways in which they are used by the intelligence services, as long as the aforementioned safeguards are in place, the Court is of the opinion that the legal provisions governing their treatment may not necessarily have to be identical in every respect to those governing the treatment of content. (iv) The Court’s assessment of the case at hand (α) Preliminary remarks 279. As noted by the Chamber, it has not been disputed by the parties that the Swedish signals intelligence activities have a basis in domestic law (see paragraph 111 of the Chamber judgment). It is further undisputed that the impugned signals intelligence regime pursues legitimate aims in the interest of national security by supporting Swedish foreign, defence and security policy and identifying external threats to the country. Therefore, following the approach outlined above, it remains to be considered whether the domestic law was accessible and contained adequate and effective safeguards and guarantees to meet the requirements of “foreseeability” and “necessity in a democratic society”. 280. Bulk interception of electronic signals within foreign intelligence in Sweden is regulated in several pieces of legislation, the main ones being the Foreign Intelligence Act and the associated Ordinance, the Signals Intelligence Act and Ordinance, the Foreign Intelligence Court Act and the FRA Personal Data Processing Act and Ordinance. Additional relevant provisions on, in particular, some aspects of the functioning of the applicable supervision mechanisms and remedies are to be found in the Foreign Intelligence Inspectorate Instructions Ordinance, the Parliamentary Ombudsmen Instructions Act and the Chancellor of Justice Supervision Act (see paragraphs 14-74 above). 281. It has not been disputed that all these provisions are publicly available. The Court would accept, therefore, that the domestic law was adequately “accessible”. 282. Turning next to the question whether the law contained adequate and effective safeguards and guarantees to meet the requirements of “foreseeability” and “necessity in a democratic society”, the Court will address in subsections (β) – () each of the eight requirements set out in paragraph 275 above. 283. In the present case it will do so simultaneously with respect to the interception of the contents of electronic communications and related communications data. This approach is justified by the fact, undisputed between the parties, that under the Swedish signals intelligence regime, the same legal provisions, procedures and safeguards concerning the interception, retention, examining, use and storing of electronic signals apply without distinction both to communications data and to the content of communications. Under the Swedish regime no particular separate issue arises, therefore, with regard to the use of communications data in bulk interception operations. (β) The grounds on which bulk interception may be authorised 284. As noted by the Chamber, according to the Signals Intelligence Act signals intelligence may be conducted only to monitor: 1. external military threats to the country; 2. conditions for Swedish participation in international peacekeeping or humanitarian missions or threats to the safety of Swedish interests in the performance of such operations; 3. strategic circumstances concerning international terrorism or other serious cross-border crime that may threaten essential national interests; 4. the development and proliferation of weapons of mass destruction, military equipment and other similar specified products; 5. serious external threats to society’s infrastructure; 6. foreign conflicts with consequences for international security; 7. foreign intelligence operations against Swedish interests; and 8. the actions or intentions of a foreign power that are of substantial importance for Swedish foreign, security or defence policy (see paragraph 22 above). 285. The preparatory works to the Signal Intelligence Act contain further elaboration of the meaning of these eight purposes (see paragraph 23 above). In the Court’s view, the level of detail and the terms used circumscribe the area in which bulk interception may be used with sufficient clarity, having regard, in particular, to the fact that the impugned regime aims at uncovering unknown foreign threats whose nature may vary and evolve with time. 286. The Court observes that while section 4 of the Foreign Intelligence Act excludes the conduct of signals intelligence within foreign intelligence to solve tasks in the area of law enforcement or crime prevention, one of the eight purposes listed above concerns “serious cross-border crime” such as, according to the preparatory works, “drug or human trafficking of such severity that it may threaten significant national interests” (see paragraph 23 above). 287. The preparatory works clarify that the aim in this regard is to survey terrorism or other cross-border crime from the perspective of Sweden’s foreign and security policy, not to combat criminal activity operatively (ibid). It is undisputed that information obtained through the impugned regime of signals intelligence cannot be used in criminal proceedings. As explained by the Government, tasking directives for signals intelligence may not be issued to investigate criminal offences and when the FRA reports intelligence to other agencies it stipulates that the intelligence may not be used in criminal investigations. In the light of the above, the Court does not share the concerns expressed by the applicant regarding the fact that since 1 March 2018 certain police departments may issue tasking directives and that the Security Police might be granted access to the FRA’s analysis material (see above paragraphs 193 in fine and 196 in fine ). It finds convincing the Government’s clarification that access may only be granted to “data that constitutes the analysis results” so as to allow strategic assessments and that the prohibition on using signals intelligence within foreign intelligence for the purposes of investigating criminal offences fully applies (see paragraph 214 above). 288. In sum, the grounds upon which bulk interception can be authorised in Sweden are clearly circumscribed so as to permit the necessary control at the authorisation and operation stage and ex post facto supervision. (γ) The circumstances in which an individual’s communications may be intercepted 289. In a bulk interception regime the circumstances in which communications might be intercepted will be very broad, as it is the communications bearers that are targeted rather than the devices from which the communications are sent, or the senders or recipients of the communications. The circumstances in which communications may be examined will be narrower, but compared to targeted interception this category will still be relatively wide, since bulk interception may be used for a more varied range of purposes, and communications may be selected for examination by reference to factors other than the identity of the sender or recipient. 290. As regards interception, signals intelligence conducted on fibre optic cables may only concern communications crossing the Swedish border. Also, and regardless of whether the source is airborne or cable-based, communications between a sender and a receiver in Sweden may not be intercepted (see paragraph 25 above). The Government have admitted, however, that separating “domestic” from “foreign” traffic is not always possible in the initial interception stages, as confirmed in the 2011 report of the Signals Intelligence Committee (see paragraphs 77-80 above; see also the reports of the Data Protection Authority, paragraphs 75-76 above). 291. It is true that the FRA may also intercept signals as part of its development activities, which may lead to data not relevant for the regular foreign intelligence being intercepted. It appears from the report of the Signals Intelligence Committee (see paragraphs 77-80 above), that signals intercepted as part of the FRA’s development activities can be used, including by being “read” and stored, for technological development purposes regardless of whether they fall within the categories defined under the eight foreign intelligence purposes. 292. The Court observes, however, that signals intercepted in the context of the FRA’s development activities do not interest the authorities for the data they might contain but only for the possibility they afford to analyse the systems and routes through which information is transmitted. In the Court’s view, the respondent Government’s explanation about the need for such an arrangement (see paragraph 207 above) is satisfactory. The examples given (the need to monitor the traffic between certain countries in order to identify bearers with relevant traffic; the need to identify trends such as new types of signals and signals protection) appear convincing: the authorities must be able to react to the evolution in technology and communication practices and, for that reason, may need to monitor very large segments of the international signals traffic. The degree of interference with individuals’ Article 8 rights engendered by such activities appears to be of a very low intensity having regard to the fact that the data thereby obtained is not in a form destined to generate intelligence. 293. In addition, it is undisputed that any information that may happen to emerge from signals intercepted for technological development purposes cannot be used as intelligence information unless such use is in conformity with the eight purposes and the applicable tasking directives (see paragraph 79 above). Moreover, development activities can be undertaken only under a permit issued by the Foreign Intelligence Court and are supervised by the Inspectorate, including for compliance with the law and the tasking directives approved by the Foreign Intelligence Court. In these circumstances the Court is satisfied that the legal framework within which the FRA’s development activities are conducted contains safeguards capable of preventing attempts to circumvent the legal restrictions related to the grounds for which signals intelligence may be used. 294. In view of the above the Court can accept that the legal provisions on bulk interception in Sweden set out with sufficient clarity the circumstances in which communications may be intercepted. (δ) The procedure to be followed for granting authorisation 295. Under Swedish law, every signals intelligence mission to be conducted by the FRA must be authorised in advance by the Foreign Intelligence Court. Where this procedure might cause delay or other inconveniences of essential importance for one of the specified purposes of the signals intelligence, the FRA may itself grant a permit and notify the Foreign Intelligence Court immediately, which triggers the permit’s rapid review by that court. The court has the power to modify or revoke it if necessary (see paragraphs 30-33 above). 296. There is no doubt that the Foreign Intelligence Court meets the requirement of independence from the executive. In particular, its president and vice-presidents are permanent judges and, while all members are appointed by the Government, they have legally defined four-year terms of office. Also, it is undisputed that neither the Government or Parliament nor other authorities may interfere with the court’s decision-making, which is legally binding. 297. As noted by the Chamber, for reasons of secrecy the Foreign Intelligence Court has never held a public hearing and all its decisions are confidential. However, Swedish law provides for the mandatory presence of a privacy protection representative at that court’s sessions, except in urgent cases. The representative, who is a judge, a former judge or an attorney, acts independently and in the public interest but not in the interest of any affected private individual. He or she has access to all the case documents and may make statements (see paragraph 34 above). In the Court’s view, having regard to the imperative need for secrecy, in particular at the stages of initial authorisation and conducting signals intelligence, the arrangement described above contains relevant safeguards against arbitrariness and must be accepted as an inevitable limitation on the authorisation procedure’s transparency. 298. The Court further observes that when applying for a permit the FRA must specify the need for the intelligence sought, the communications bearers to which access is needed and the selectors – or at least the categories of selectors – that will be used. This should lead to examination whether the mission is compatible with applicable legislation, including the eight purposes for which signals intelligence may be undertaken, and whether the intelligence collection is proportional to the resultant interference with private life (see paragraphs 30-33 above). 299. Importantly, section 3 of the Signals Intelligence Act requires that the selectors must be formulated in such a way that the interference with personal integrity is limited as far as possible (see paragraph 26 above), which implies necessity and proportionality analysis. Compliance with this requirement at the authorisation phase is within the competence of the Foreign Intelligence Court. That court’s decision, taken in proceedings with the participation of a privacy protection representative, is binding. This is an important safeguard built into the Swedish bulk interception system. 300. The Court further observes that Swedish law provides for a form of special prior authorisation of strong selectors in that the Foreign Intelligence Court verifies whether, as required by section 3 of the Signals Intelligence Act, the use of selectors directly related to a specific natural person is of “exceptional importance” for the intelligence activities. The interpretation of section 3 of the Signals Intelligence Act in the practice of the Foreign Intelligence Court has not been explained to the Court, nor how section 3 interacts with section 5 of the same Act, which indicates that the judicial authorisation may at least in some cases concern “categories of selectors” rather than individual selectors. If such a case would occur, namely individual selectors not being approved by the Foreign Intelligence Court, the question would arise whether a process of prior internal authorisation providing for separate and objective verification is in place (see paragraph 269 above). However, having regard to the independence of the Foreign Intelligence Court and the applicable procedural guarantees in proceedings before it, the “exceptional importance” standard at the authorisation stage is capable of providing relevant enhanced protection against the arbitrary use of selectors linked to identified individuals. 301. The Swedish system of authorisation has its inherent limits. For example, it may be difficult for the Foreign Intelligence Court to appreciate the proportionality aspect where only categories of selectors are specified in the FRA’s request for a permit, or where the indicated selectors are several thousand in number or are expressed as technical combinations of numbers or letters. 302. However, for the purposes of the Court’s analysis, at this stage the relevant point is that the Swedish authorisation system offers a judicial ex ante review of permit requests which is comprehensive, in the sense that the aim of the mission and the bearers and categories of selectors to be used are subject to control, and is sufficiently detailed in respect of secret bulk signals intelligence as part of foreign intelligence. Such a review offers a significant safeguard against, notably, the launch of abusive or clearly disproportionate bulk interception operations. Importantly, it also sets the framework within which a concrete operation must unfold and the limits whose observance then becomes the object of the applicable supervision and ex post facto control mechanisms. (ε) The procedures to be followed for selecting, examining and using intercept material 303. It transpires from the material in the Court’s possession that in Sweden the interception of cable-based electronic signals is automated and the interception of such signals over the airways may be either automated or manual. Automated interception over the airways is a process that is identical to the process of interception of signals passing through cross-border cables. 304. As regards the use of non-automated interception and searches of electronic signals over the airways, the Swedish Government clarified before the Grand Chamber that it is primarily used for near real-time reporting of foreign military activities and is done by an operator who listens in real time to military radio transmissions on selected radio frequencies or looks at a screen where the energy from a signal in electronic form is visualised and then records relevant parts for analysing and reporting. The applicant did not comment in reply. 305. Even assuming that the interception of foreign military radio frequencies may affect Article 8 rights in rare cases, the Court notes that this aspect of the Swedish signals intelligence regime is covered by the same procedures and safeguards as applicable to interception and use of cable-based communications. 306. Turning to the procedure for examination of the intercepted material, the Court notes that, as explained by the respondent Government, the FRA processes the data through automated and manual means, using, among other techniques, cryptoanalysis, structuring and language translation. Thereafter, the processed information is analysed by an analyst in order to identify intelligence therein. The next step consists in the elaboration of a report which is disseminated to selected recipients of foreign intelligence (see paragraphs 18 and 29 above). 307. In the Court’s view, it is significant that at the examination stage the FRA is under an obligation to discard intercepted domestic communications immediately once identified (see paragraph 38 above). 308. Despite the fact that the distinction between domestic and foreign communications may not be waterproof and the prohibition to intercept the former apparently cannot prevent it from happening in the automatic stage of capturing signals, the exclusion of domestic traffic from the scope of signals intelligence must be seen as a significant limitation on the authorities’ discretion and as a safeguard against abuse. The limitation in question sets the framework within which the authorities are allowed to operate and provides the existing pre-authorisation, supervision and control mechanisms with an important criterion related to the operation’s lawfulness and the protection of the rights of individuals. In particular, it is clear that the choice of communications bearers and categories of selectors – which is subject to control by the Foreign Intelligence Court (see paragraph 30 above) – must be in conformity with the above-mentioned exclusion of domestic communications. 309. As already noted above (see paragraph 300), the practice of the Foreign Intelligence Court regarding the pre-authorisation of selectors or categories of selectors directly linked to identifiable individuals has not been presented to the Court. The Court notes, however, the Government’s position that logs and records are systematically kept by the FRA throughout the process, from the collection of data to the final reporting, communicating to other parties and destruction. All searches made by analysts are recorded. When the search is made in a data compilation containing personal data the record includes the selectors used, the time, the name of the analyst and the justification for the search, including the detailed tasking directive which is the reason for the search. In addition to the logs, records are kept of decisions taken in the course of the signals intelligence process. 310. The applicant did not dispute the above but considered that (i) it had not been shown that logs were sufficiently detailed and (ii) the FRA’s record-keeping practices, not being prescribed by law, were at the mercy of internal procedures and discretion. 311. The Court considers that the obligation to keep logs and detailed record of each step in bulk interception operations, including all selectors used, must be set out in domestic law. The fact that in Sweden it appears in internal instructions only is undoubtedly a shortcoming. However, having regard, in particular, to the existence of oversight mechanisms covering all aspects of the FRA’s activities, there is no reason to consider that detailed logs and records are not kept in practice or that the FRA could proceed to changing its internal instructions arbitrarily and removing its obligation in that regard. While it is true that in 2010 and 2016 the Swedish Data Protection Authority criticised an aspect of the FRA’s practices of keeping logs, this only concerned the manner in which the FRA monitored logs used to detect unwarranted use of personal data (see paragraph 76 above). Furthermore, the Government clarified that since 1 January 2018 logs which were previously kept by separate “system owners” within the FRA are being sent to a central function, thus improving their monitoring. This change had been reported to the Swedish Data Protection Authority, which had not requested further action and had closed the file. 312. Swedish law affords specific protection of personal data, including data that may reveal aspects of natural persons’ private life or communications. In the context of signals intelligence, the FRA Personal Data Processing Act imposes on the FRA the obligation to ensure that personal data is collected only for the authorised purposes expressly determined through tasking directives and within the limits of the permit issued by the Foreign Intelligence Court. As noted by the Chamber, the personal data treated also has to be adequate and relevant in relation to the purpose of the treatment. No more personal data than what is necessary for that purpose may be processed. All reasonable efforts have to be made to correct, block and obliterate personal data which is incorrect or incomplete in relation to the purpose (see paragraph 40 above). The FRA staff treating personal data are security cleared, subject to confidentiality and under an obligation to handle the personal data in a safe manner. Also, they could face criminal sanctions if tasks relating to the treatment of personal data are mismanaged (see paragraph 42 above). 313. The applicant criticised the fact that the safeguards mentioned in the preceding paragraph only apply to intercepted material containing “information that is directly or indirectly related to a natural living person”. The applicant deduced from this fact that legal persons were left unprotected. 314. The Court observes, however, that there is nothing to suggest that the protection guaranteed by the FRA Personal Data Processing Act and the FRA Personal Data Processing Ordinance does not apply to the content of communications exchanged by legal persons such as the applicant whenever those include “information that is directly or indirectly related to a natural living person”. Furthermore, it must be noted that most legal requirements and safeguards provided for in the above-mentioned legislation would normally be of value to natural persons only. For example, the Act in question prohibits processing of personal data solely because of what is known of a person’s race or ethnicity, political, religious or philosophical views, membership of a union, health or sexual life. It provides for a special requirement limiting the keeping of material containing personal data and for sanctions for mismanagement of personal data. It guarantees specific monitoring of personal data treatment and sets out the powers of the Data Protection Authority in this regard. In other words, the Act in question adds another layer of protection, tailored to the specificities of personal data, to the already existing safeguards that are applicable to information concerning natural and legal persons alike. 315. This approach, which takes into account the special sensitivity of personal data, does not seem to be problematic and does not mean that the communications of legal persons are left unprotected by safeguards. Contrary to the applicant’s claim, there is nothing in the relevant legislation suggesting that intercept material not containing personal data can be used for purposes incompatible with the original purpose of the interception, as approved by the Foreign Intelligence Court. 316. In sum, the Court is satisfied that the legislation on selecting, examining and using intercepted data provides adequate safeguards against abuse that may affect Article 8 rights. (στ) The precautions to be taken when communicating the material to other parties 317. As regards communication of data from the FRA to other Swedish Government bodies, the Court observes that the very purpose of signals intelligence is to obtain information that is useful for the mission of relevant sectors of Government. The circle of domestic authorities that may be given such information in Sweden is narrow and includes above all the Security Police and the Armed Forces. The FRA may grant these bodies direct access to data that constitutes the results of analysis in a data compilation, to enable them to make assessments of terrorist threats at strategic level. This is done, in particular, in the framework of a tripartite working group of analysts from the FRA, the Security Police and the Armed Forces, called the National Centre for Assessment of Terrorist Threats. The Court considers that the above regime is clearly circumscribed and does not appear to generate a particular risk of abuse. 318. The Court further notes that the Chamber expressed concerns as regards the Swedish arrangements on communicating data to foreign Governments or international organisations, pointing to three issues: (a) that the legislation does not require consideration of possible harm to the individual concerned when making a decision about sharing; (b) that there is no provision requiring the recipient State or organisation to protect the data with the same or similar safeguards as those applicable under Swedish law and; (c) that the possibility to communicate data when necessary for “international defence and security cooperation” opens up for a rather wide scope of discretion. The Chamber nevertheless considered that the supervisory mechanisms sufficiently counterbalanced these regulatory shortcomings (see paragraph 150 of the Chamber judgment). 319. Before the Grand Chamber the Government essentially disputed that there were areas of concern, emphasising that international cooperation was limited to exchanges with trusted foreign partners and was monitored by the Inspectorate, whereas the applicant considered that the discretion granted to the FRA was too broad and that the existing supervisory mechanisms did not counterbalance the identified shortcomings, there being no legal requirements in respect of which compliance could be supervised (see the parties’ positions in more detail in paragraphs 200, 201, 215 and 216 above). 320. The Court points out at the outset that in the present case it is not dealing with a concrete occurrence of, for example, the disclosure or use, by a foreign Government or organisation, of personal data transmitted to them by the Swedish authorities. Indeed, no examples about such disclosures or use have been submitted to the Court. Nonetheless, insofar as the possibility of transmitting intelligence to foreign parties is part of the Swedish bulk interception regime and activities whose very existence can be seen as interfering with Article 8 rights, the Court, having regard to the applicant’s complaints, must review the Swedish intelligence transmission regime and its functioning for their compliance with the requirements of quality of the law and necessity in a democratic society. The applicant’s complaints relate solely to the sending of intelligence to foreign parties and do not concern the receipt of foreign intelligence and its use by the Swedish authorities. 321. It is undisputed that Contracting States may need to transmit to foreign services intelligence obtained through bulk interception of communications for a variety of reasons, including warning foreign Governments about threats, soliciting their help in identifying and dealing with threats or enabling international organisations to act in exercise of their mandate. International cooperation is crucial for the effectiveness of the authorities’ efforts to detect and thwart potential threats to Contracting States’ national security. 322. The Court observes that the possibility for the FRA to share intelligence it has obtained with foreign partners is provided for in Swedish law, which also sets out the relevant general purpose (see paragraphs 49 and 74 above). It is to be observed, however, that the level of generality of the terms used cannot but lead to the conclusion that the FRA may send intelligence abroad whenever this is considered to be in the national interest. 323. Having regard to the unpredictability of situations that may warrant cooperation with foreign intelligence partners, it is understandable that the precise scope of intelligence sharing cannot be circumscribed in law through, for example, exhaustive and detailed lists of such situations or the types of intelligence or content that can be transmitted. The applicable legal regulation and practice must operate, however, in a manner capable of limiting the risk of abuse and disproportionate interference with Article 8 rights. 324. In this regard the Court notes, first, that in so far as the intelligence transmitted to foreign services is in the form of information obtained by the FRA through its bulk interception activities, it is necessarily the product of legally regulated procedures to which all relevant safeguards apply. This includes the procedural guarantees, such as the authorisation by the Foreign Intelligence Court and the supervision by the Inspectorate (see paragraphs 295-302 above and 345-353 below), and the substantive limitations, such as those regarding the grounds on which interception of signals can be ordered, the searching, in particular through selectors identifying an individual, and all further examination (see paragraphs 284-288 and 303-316 above). As already seen, the above mentioned procedures involve an assessment of necessity and proportionality with regard to, in particular, Article 8 Convention rights. Therefore, the safeguards internally applicable in Sweden in the process of obtaining the intelligence that may later be transmitted to a foreign partner also limit, at least to a certain extent, the risk of adverse consequences that may ensue after the transmission has taken place. 325. The Court also notes that the supervision mechanisms provided for under the Personal Data Processing Act, specifically tailored to the protection of personal data, apply to all activities of the FRA (see paragraphs 56 above). 326. In the Court’s view, despite the above considerations, the absence, in the relevant signals intelligence legislation, of an express legal requirement for the FRA to assess the necessity and proportionality of intelligence sharing for its possible impact on Article 8 rights is a substantial shortcoming of the Swedish regime of bulk interception activities. It appears that, as a result of this state of the law, the FRA is not obliged to take any action even in situations when, for example, information seriously compromising privacy rights is present in material to be transmitted abroad without its transmission being of any significant intelligence value. Furthermore, despite the fact that the Swedish authorities obviously lose control over the shared material once it has been sent out, no legally binding obligation is imposed on the FRA to analyse and determine whether the foreign recipient of intelligence offers an acceptable minimum level of safeguards (see paragraph 276 above). 327. The Government’s answer to these concerns was essentially that intelligence cooperation with foreign services inevitably functions on the basis of a shared interest in preserving the secrecy of information and that this practical reality limited the risks of abuse. 328. The Court finds the above-mentioned approach insufficient as a safeguard. The Government have not identified any obstacles against setting out clearly in domestic law an obligation for the FRA or another relevant body to balance the necessity of transmitting intelligence abroad against the need to protect the right to respect for private life. By comparison, the Court notes that, for example, the relevant regime in the United Kingdom includes an obligation to take reasonable steps to ensure that the foreign authorities would maintain the necessary procedures to safeguard the intercepted material and to ensure that it is disclosed, copied, distributed and retained only to the minimum extent necessary (see paragraph 7.5 of the United Kingdom Interception of Communications Code of Practice, quoted in Big Brother Watch and Others, cited above, § 96). 329. It is true that in 2014 the Inspectorate undertook a general review of the FRA’s cooperation with other States and, between 2009 and 2017, repeatedly inspected other relevant aspects of its activities, including the treatment of personal data and the communication of its reports (see paragraph 53 above). However, since the Inspectorate’s role is to exercise control for lawfulness, in the absence of an express legal obligation for the FRA to consider privacy concerns or seek at least some safeguards in this regard from foreign partners before sending them intelligence, it is not unreasonable to consider, as the applicant did, that the Inspectorate does not monitor possible risks or disproportionate consequences of intelligence sharing on Article 8 Convention rights. The respondent Government have failed to convince the Court that this is done in practice on the basis of, for example, constitutional or other general fundamental rights provisions. It follows that, unlike the Chamber, the Grand Chamber cannot accept that the shortcomings in the regulatory framework are sufficiently counterbalanced by the supervisory elements of the Swedish regime. 330. In sum, the absence of a requirement in the Signals Intelligence Act or other relevant legislation that consideration be given to the privacy interests of the individual concerned when making a decision about intelligence sharing is a significant shortcoming of the Swedish regime, to be taken into account in the Court’s assessment of its compatibility with Article 8 of the Convention. (ζ) The limits on the duration of interception, the storage of intercept material and the circumstances in which such material must be erased and destroyed 331. The duration of bulk interception operations is, of course, a matter for the domestic authorities to decide. There must, however, be adequate safeguards, such as a clear indication in domestic law of the period after which an interception warrant will expire, the conditions under which a warrant can be renewed and the circumstances in which it must be cancelled (see Roman Zakharov, cited above, § 250). 332. Under section 5(a) of the Signals Intelligence Act a permit may be granted for a maximum of six months. This period may be extended, for six months at a time, following a new full examination of the relevant conditions for the granting of a permit by the Foreign Intelligence Court. Therefore, as noted by the Chamber, Swedish law gives a clear indication of the period after which a permit will expire and of the conditions under which it may be renewed. 333. As also noted by the Chamber, however, there is no provision obliging the FRA, the authorities mandated to issue detailed tasking directives or the Foreign Intelligence Court to cancel a signals intelligence mission if the conditions for it have ceased to exist or the measures themselves are no longer necessary. 334. Before the Grand Chamber, the applicant considered that the lack of provision for the cancellation of permits when no longer needed opened the door to excessive and inappropriate surveillance for several months until the warrant eventually expired on its own. In the applicant’s view, this shortcoming was very significant, given the sheer volume of information that could be obtained through bulk interception in that time. The Government stated that an interception operation would be discontinued if it was no longer needed, if a tasking directive was revoked or if it was not in accordance with the permit. 335. The Court is of the view that an express provision on discontinuation of bulk interception when no longer needed would have been clearer than the existing arrangement in Sweden according to which, apparently, permits may or may not be cancelled when circumstances warranting such a cancellation come to light in the period before the expiry of their six months’ validity. 336. The significance of this shortcoming should, however, not be overestimated, in the Court’s view, for two main reasons. First, Swedish law provides for relevant mechanisms, such as the possibility for the requesting authority to revoke a tasking directive and for supervision by the Inspectorate, both of which can lead to the cancellation of a bulk interception mission when the conditions for it have ceased to exist or it is no longer needed. Second, by the nature of things, in the context of signals intelligence within foreign intelligence the implementation of a legal requirement to cancel a permit when no longer needed must in all likelihood be heavily dependent on internal operative assessments involving secrecy. Therefore, in the specific context of bulk interception for foreign intelligence purposes, the existence of supervision mechanisms with access to all internal information must generally be seen as providing similar legislative safeguards against abuse related to the duration of interception operations. 337. For the reasons set out above, the Court finds that Swedish law satisfies the requirements concerning duration of bulk interception of communications. 338. The Chamber made the following findings concerning the circumstances in which intercept data must be erased and destroyed, at paragraphs 145 and 146 of its judgment: “145. Contrary to the applicant’s claim, there are several provisions regulating the situations when intercepted data has to be destroyed. For example, intelligence must be destroyed immediately if it 1) concerns a specific natural person and has been determined to lack importance for the purpose of the signals intelligence, 2) is protected by constitutional provisions of secrecy for the protection of anonymous authors or media sources, 3) contains information shared between a criminal suspect and his or her counsel and is thus protected by attorney-client privilege, or 4) involves information given in a religious context of confession or individual counselling, unless there are exceptional reasons for examining the information ... Moreover, if communications have been intercepted between a sender and receiver both in Sweden, despite the ban on the interception of such communications, they must be destroyed as soon as their domestic nature has become evident ... Also, where a temporary permit granted by the FRA has been revoked by the Foreign Intelligence Court, all intelligence collected on the basis of that permit must be immediately destroyed ... 146. Although the FRA may maintain databases for raw material containing personal data up to one year, it has to be kept in mind that raw material is unprocessed information. That is, it has yet to be subjected to manual treatment. The Court accepts that it is necessary for the FRA to store raw material before it can be manually processed. At the same time, the Court stresses the importance of deleting such data as soon as it is evident that it lacks pertinence for a signals intelligence mission.” 339. The Grand Chamber endorses this analysis in principle but also considers it important to point to the fact that it has insufficient information about certain aspects of the manner in which the rules on destruction of intercept material are applied in practice. 340. Certainly, the Inspectorate’s supervision powers include the monitoring of the FRA’s practice on destroying intercept material and this aspect of its activities has already been the subject of inspections (see paragraph 53 above). This is an important safeguard for the proper application of the existing rules. 341. However, before the Grand Chamber the applicant pointed to the fact that the limits on the storing of intercept material and the requirements mentioned by the Chamber about destroying it did not apply to material which does not contain personal data. The Government did not address this issue specifically. 342. In the Court’s view, while there is clear justification for special requirements regarding the destruction of material containing personal data, there must also be a general legal rule governing the destruction of other material obtained through bulk interception of communications, where keeping it may affect, for example, the right of respect for correspondence under Article 8, including concerning legal persons as the applicant. As a very minimum, as also stressed by the Chamber, there should be a legal requirement to delete intercepted data that has lost pertinence for signals intelligence purposes. The Government have not shown that the Swedish regulatory framework covers this aspect. However, while observing that there is only a narrow set of circumstances in which it could happen that none of the specific rules on destruction of intercept material noted in the preceding paragraphs would apply, the Court notes this point as a procedural shortcoming in the regulatory framework. 343. Finally, the Court does not have sufficient information as to the manner in which the necessity to keep or destroy material containing personal data is assessed in practice and as to whether unprocessed intercept material is always stored for the maximum period of one year or the necessity of continued storage is regularly reviewed, as it should be. This makes it difficult to arrive at comprehensive conclusions covering all aspects of the storage and deletion of intercept material. In the context of its analysis on the ex post facto review in the Swedish bulk interception system, the Court will return to the question what conclusions could be drawn from the fact that it has insufficient information on the above point and other aspects of the functioning of the Swedish system. 344. In sum, for the purposes of the present stage of the analysis, while the Court noted in the preceding paragraph a procedural shortcoming that needs to be addressed, it considers that, as a whole, the circumstances in which the intercept material has to be destroyed are clear under Swedish law. (η) Supervision 345. Under Swedish law the task of overseeing foreign intelligence activities in general and signals intelligence in particular is entrusted mainly to the Foreign Intelligence Inspectorate. Further supervisory functions, albeit with lesser powers, are exercised by the Data Protection Authority. 346. Noting that the Inspectorate’s board is presided over by permanent judges or former judges and that its members, appointed for terms of at least four years by the Government, are selected from candidates proposed by the party groups in the Parliament, the Court is satisfied that the Inspectorate’s role is that of an independent control mechanism. 347. The Inspectorate has wide-ranging powers covering the operation of signal intelligence activities from beginning to end. In particular, it is tasked with granting the FRA access to communications bearers after verifying that the requested access corresponds to the permit issued by the Foreign Intelligence Court (Chapter 6, section 19a of the Electronic Communications Act). The Inspectorate reviews all other aspects of the FRA’s activities, including the interception, analysis, use and destruction of material. Importantly, it can scrutinise the selectors used (section 10 of the Signals Intelligence Act) and enjoys access to all relevant documents of the FRA (see paragraphs 50-53 above). 348. It appears therefore that the Inspectorate has the powers and tools necessary to assess not only compliance with the formal requirements of Swedish law but also to examine aspects of the proportionality of the interference with individual rights that may be occasioned by signals intelligence activities. It is noteworthy in this regard that its inspections included numerous detailed examinations of, in particular, the selectors used (see paragraph 53 above). 349. The applicant pointed to the fact that some of the acts issued by the Inspectorate are in the form of opinions and recommendations, rather than legally binding decisions, and apparently considered that this weakened substantially the real impact of the Inspectorate’s work. 350. The Court notes that under section 10 of the Signals Intelligence Act the Inspectorate, when it finds evidence of improper signals collection, has the power to decide, with legally binding effect, that the collection must cease or that recordings or notes of collected data must be destroyed. On certain other issues, such as potential civil liability of the State with respect to a person or organisation or where there is an indication that a criminal offence may have been committed, the Inspectorate has a duty to report to the competent authorities with which the power to take legally binding decisions lies. The Court considers the above arrangement to be satisfactory. While it is true that there appears to be no legal possibility under Swedish law for the enforcement of the Inspectorate’s recommendations when it seeks the evolution or correction of practices by the FRA, the Court observes that, according to the conclusions of the National Audit Office which audited the Inspectorate in 2015, the FRA had routines in place for handling the Inspectorate’s opinions, the latter’s suggestions were dealt with in a serious manner and, when called for, gave rise to reforms. The action decided by the Inspectorate had been taken, with the exception of one case when the FRA had referred the matter to the Government (see paragraph 54 above). 351. Furthermore, the information available to the Court concerning the inspections conducted by the Inspectorate confirms that not only in theory but also in practice it actively reviews FRA’s actions both on a general systematic basis and also by themes. In particular, over a period of eight years the Inspectorate has undertaken 102 inspections, including detailed examinations of the selectors used, the destruction of intelligence, the communication of reports, cooperation with other States and international organisations, the processing of personal data and the overall compliance with the legislation, directives and permits relevant to the signals intelligence activities. These resulted in several opinions and suggestions to the FRA and one opinion submitted to the Government. The effect of the Inspectorate’s activity is illustrated by the fact that, for example, when it suggested in 2011 some amendments to the FRA’s internal rules concerning destruction of data, these were introduced the same year (see paragraph 53 above). 352. Finally, the Inspectorate issues annual reports which are made available to the public and its activities have been the object of audits by the National Audit Office (see paragraphs 53 and 54 above). 353. In these circumstances, there is no reason to doubt that Swedish law and practice secure an effective supervision on signal intelligence activities in Sweden. In the Court’s view, the Inspectorate’s role, coupled with the judicial pre-authorisation procedure before the Foreign Intelligence Court, form together a functioning safeguard against abuse at the crucial stages of the signals intelligence process – before and during the process of interception, analysis, use and destruction of the information obtained. (θ) Ex post facto review 354. It appears undisputed that, due to secrecy, no use has ever been made in practice of the theoretical possibility under the Signals Intelligence Act to notify natural persons when selectors directly related to them have been employed (see paragraphs 58, 59, 75 in fine and 80 above). 355. In the Court’s view, it is clear that notifying affected individuals in the context of the Swedish system of signals intelligence as part of foreign intelligence, if at all technically possible, might have far-reaching consequences that are difficult to foresee in advance. As already noted (see paragraph 272 above) a remedy which does not depend on notification to the interception subject could be an effective remedy in the context of bulk interception. The Court therefore accepts the respondent State’s approach in this regard as being legitimate. However, the absence of a functioning notification mechanism should be counterbalanced by the effectiveness of the remedies that must be available to individuals who suspect that their communications may have been intercepted and analysed. 356. The Court notes in this regard that the Signals Intelligence Act provides for ex post facto review on the initiative of individuals or legal persons without them having to demonstrate that they may have been affected by a bulk interception operation. In reaction to a request by anyone, regardless of nationality and residence, the Foreign Intelligence Inspectorate must investigate if the person’s communications have been intercepted through signals intelligence and, if so, verify whether the interception and treatment of the information have been in accordance with the law. As already noted (see paragraph 350 above), the Inspectorate has the power to decide that the signals intelligence operation shall cease or that the intelligence shall be destroyed. 357. The applicant pointed out that there is no possibility for an individual to be informed of whether his or her communications have actually been intercepted or, generally, to be given reasoned decisions. Under the relevant domestic law the Inspectorate informs the complainant only that an investigation has been carried out (see paragraph 61 above). 358. It transpires from the material available to the Court (see, in particular, paragraphs 61 and 203 above) that the Inspectorate regularly examines the requests submitted to it by individuals. 359. However, while it is true that the Inspectorate is an independent body, the Court observes that, having regard to that body’s duty to supervise and monitor the FRA’s activities, which includes taking or authorising operational decisions such as those concerning access to the signal carriers, use of selectors, analysis, use and destruction of intercept material (see paragraphs 50-53 above), the Inspectorate’s additional role of ex post facto review on request from individuals may lead to situations where it will have to assess its own activities in supervising bulk interception by the FRA. In the conditions of secrecy, which legitimately characterise the relevant procedures, and failing a legal obligation for the Inspectorate to provide reasons to the individual concerned, there may be doubts as to whether the Inspectorate’s examination of individual complaints in such situations affords adequate guarantees of objectivity and thoroughness. It cannot be excluded that the dual role of the Inspectorate may generate conflicts of interest and, therefore, the temptation to overlook an omission or misconduct in order to avoid criticism or other consequences. 360. The Court does not disregard in this respect the fact that the Inspectorate is itself subject to audits (paragraph 54 above), which could in principle be seen as a relevant safeguard. It notes, however, that the Government have not provided any information demonstrating that the audits conducted so far covered the Inspectorate’s investigations undertaken at the requests of individuals seeking information as to whether their communications had been intercepted by the FRA. It appears that there is no legal obligation for the National Audit Office – which is responsible for auditing a significant number of administrative bodies in various sectors – to conduct such specific audits and to do so regularly. In these circumstances and having regard to the structural issue noted in the preceding paragraph, the Court is not convinced that the potential possibility of the National Audit Office examining the Inspectorate’s handling of individuals’ complaints is sufficient. 361. Furthermore, in the Court’s view, a system of ex post facto review that does not produce reasoned decisions in response to complaints submitted by individuals, or at least decisions that contain reasons accessible to security-cleared special counsel, is too dependent on the initiative and perseverance of appointed officials operating away from the public eye. With regard to the Swedish system, the Court notes that no details are communicated to the complainant as to the content and outcome of the investigation conducted by the Inspectorate and, hence, the Inspectorate seems to be afforded wide discretion. A reasoned decision has the undeniable advantage of providing publicly available guidance on the interpretation of the applicable legal rules, the limits to be observed and the manner in which the public interest and individual rights are to be balanced in the specific context of bulk interception of communications. As noted by the Court in Kennedy (cited above, § 167), the publication of such legal rulings enhanced the level of scrutiny in this area. These observations lead the Court to consider that the above-mentioned features of the Swedish system do not offer a sufficient basis for public confidence that abuses, if they occur, will be unveiled and remedied. 362. It is true that individuals can turn to the Parliamentary Ombudsmen and the Chancellor of Justice, who can scrutinise the authorities’ actions for, inter alia, lawfulness and possible encroachment upon fundamental rights and freedoms. The Chancellor and the Ombudsmen have the power to initiate criminal or disciplinary proceedings (see paragraphs 66-68 above). While these are relevant complaint mechanisms, the Court notes that they do not seem to have been used frequently in the context of bulk interception of communications (see above, paragraph 67 in fine ). In any event, it is of the view that a legal procedure before an independent body, which in so far as possible offers an adversarial process resulting in reasoned and legally binding decisions, is an essential element of an effective ex post facto review. However, these conditions were met neither by the Chancellor not the Ombudsmen. 363. Finally, the Court agrees with the applicant that the remedy available in the United Kingdom before the IPT (see Big Brother Watch and Others, cited above, §§ 413-15), illustrates that it is possible to reconcile legitimate security concerns and the need to ensure a reliable ex post facto control of bulk interception activities. 364. In sum, the Inspectorate’s dual role and the absence of a possibility for members of the public to obtain reasoned decisions in some form in response to inquiries or complaints regarding bulk interception of communications, elements that are not in line with the requirements of an effective ex post facto review, must be seen as a shortcoming of the Swedish regime, to be taken into account in the Court’s assessment of its compatibility with Article 8 of the Convention. In the Court’s view, the above-mentioned shortcoming is particularly relevant having regard to the fact that the Court has insufficient information about the practice of the Foreign Intelligence Court on judicial pre-authorisation of strong selectors or categories of selectors (see paragraph 300 above) and on the manner in which the legal requirements on destruction of intercept material are applied in practice (see paragraph 343 above). This undoubtedly exacerbates the uncertainty for the individuals concerned as to whether arbitrariness or abuse concerning them might have occurred. (ι) Conclusion 365. The Court is in no doubt that bulk interception is of vital importance to Contracting States in identifying threats to their national security. This has been recognised, in particular, by the Venice Commission (see paragraph 86 above). It appears that, in present-day conditions, no alternative or combination of alternatives would be sufficient to substitute for the bulk interception power. 366. The Court further reiterates that it is not its role to prescribe an ideal model for signals intelligence but rather to review for Convention compliance the existing legal and practical arrangements, which vary conceptually and functionally from one Contracting Party to another. In this exercise, the Swedish signals intelligence model and its safeguards against abuse must be seen as one whole. 367. The review of the Swedish bulk interception system in the present case has revealed that it is based on detailed legal rules, is clearly delimited in scope and provides for safeguards. The grounds upon which bulk interception can be authorised in Sweden are clearly circumscribed, the circumstances in which communications might be intercepted and examined are set out with sufficient clarity, its duration is legally regulated and controlled and the procedures for selecting, examining and using intercepted material are accompanied by adequate safeguards against abuse. The same protections apply equally to the content of intercepted communications and communications data. 368. Crucially, the judicial pre-authorisation procedure as it exists in Sweden and the supervision exercised by an independent body in Sweden serve in principle to ensure the application of the domestic legal requirements and the Convention standards in practice and to limit the risk of disproportionate consequences affecting Article 8 rights. Notably, regard must be had to the fact that in Sweden the limits to be observed in each bulk interception mission, as well as its lawfulness and proportionality in general, are the subject matter of judicial pre-authorisation proceedings before the Foreign Intelligence Court, which sits in the presence of a privacy protection representative defending the public interest. 369. The Court noted three shortcomings in the Swedish bulk interception regime: the absence of a clear rule on destroying intercepted material which does not contain personal data (see paragraph 342 above); the absence of a requirement in the Signals Intelligence Act or other relevant legislation that, when making a decision to transmit intelligence material to foreign partners, consideration is given to the privacy interests of individuals (see paragraphs 326-330 above); and the absence of an effective ex post facto review (see paragraphs 359-364 above). 370. As regards the first of these shortcomings, its potential for causing adverse consequences on Article 8 rights is limited by the fact that Swedish law provides for clear rules on the destruction of intercept material in a number of circumstances and, above all, when it contains personal data. 371. However, the Court considers that the second shortcoming may potentially lead to very significant adverse consequences for affected individuals or organisations. As noted, the above-mentioned shortcoming may allow information seriously compromising privacy rights or the right to respect for correspondence to be transmitted abroad mechanically, even if its intelligence value is very low. Such transmission may therefore generate clearly disproportionate risks for Article 8 Convention rights. Furthermore, no legally binding obligation is imposed on the FRA to analyse and determine whether the foreign recipient of intelligence offers an acceptable minimum level of safeguards. 372. Finally, the Inspectorate’s dual role and the absence of a possibility for members of the public to obtain reasoned decisions in some form in response to inquiries or complaints regarding bulk interception of communications weakens the ex post facto control mechanism to an extent that generates risks for the observance of the affected individuals’ fundamental rights. Moreover, the lack of an effective review at the final stage of interception cannot be reconciled with the Court’s view that the degree of interference with individuals’ Article 8 rights increases as the process advances (see paragraphs 239 and 245 above) and falls short of the requirement of “end-to-end” safeguards (see paragraph 264 above). 373. The Court is satisfied that the main features of the Swedish bulk interception regime meet the Convention requirements on quality of the law and considers that the operation of this regime at the time of the Chamber examination was therefore in most aspects kept within the limits of what is “necessary in a democratic society”. It finds, however, that the shortcomings mentioned in the preceding paragraphs are not sufficiently compensated by the existing safeguards and that, therefore, the Swedish bulk interception regime oversteps the margin of appreciation left to the authorities of the respondent State in that regard. The Court reiterates that there is considerable potential for bulk interception to be abused in a manner adversely affecting the rights of individuals to respect for private life (see paragraph 261 above). Therefore, having regard to rule of law principle, which is expressly mentioned in the Preamble to the Convention and is inherent in the object and purpose of Article 8 (see Roman Zakharov, cited above, § 228), the Court considers that the Swedish bulk interception regime, when viewed as a whole, did not contain sufficient “end-to-end” safeguards to provide adequate and effective guarantees against arbitrariness and the risk of abuse. (d) Conclusion on Article 8 374. Having regard to the above conclusion concerning the lawfulness and justification of the impugned bulk interception regime, the Court finds that in the present case there has been a violation of Article 8 of the Convention. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 375. The applicant complained that the remedies available under the Swedish bulk interception regime were insufficient and did not meet the requirements of Article 13 of the Convention. That provision reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 376. The Chamber found that no separate issue arose under that provision (see paragraph 184 of the Chamber judgment). 377. The Grand Chamber adopts the same conclusion, having regard to its finding above that there has been a violation of Article 8. APPLICATION OF ARTICLE 41 OF THE CONVENTION 378. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 379. The applicant stated that a finding of a violation would constitute sufficient redress. The Government agreed. 380. The Court accordingly makes no award under this head. Costs and expenses 381. The applicant claimed 544,734 Swedish crowns (“SEK”) for 217 hours of legal work in the Chamber proceedings and 190 hours of legal work in the Grand Chamber proceedings (407 hours in total) at hourly rates ranging from SEK 1,302 to SEK 1,380. 382. The applicant also claimed travel and accommodation expenses for the attendance of its three representatives at the hearing before the Grand Chamber on 10 July 2019. These expenses amounted to SEK 8,669 for flight tickets and SEK 8,231 for hotel accommodation (SEK 16,900 in total). The applicant submitted copies of the relevant invoices. 383. The total amount claimed by the applicant was thus SEK 561,634 (the equivalent of approximately EUR 52,625). 384. The Government stated that they did not object to the claims made by the applicant but considered that if only one of the Convention Articles covered by the complaint is found to be violated the reimbursement should be reduced accordingly. 385. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in the Court’s possession and the above criteria and noting, in addition, that a violation of the Convention was found in respect of the applicant’s main complaint, the complaint under Article 8, the Court considers it reasonable to award EUR 52,625 to cover costs and expenses under all heads. Default interest 386. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Grand Chamber held, by fifteen votes to two, that there had been a violation of Article 8 of the Convention. It found, in particular, that although the main features of the Swedish bulk interception regime met the Convention requirements on quality of the law, the regime nevertheless suffered from three defects: the absence of a clear rule on destroying intercepted material which did not contain personal data; the absence of a requirement in the Signals Intelligence Act or other relevant legislation that, when making a decision to transmit intelligence material to foreign partners, consideration was given to the privacy interests of individuals; and the absence of an effective ex post facto review. As a result of these deficiencies, the system did not meet the requirement of “end-to-end” safeguards, it overstepped the margin of appreciation left to the respondent State in that regard, and overall did not guard against the risk of arbitrariness and abuse. |
849 | GPS data | II. RELEVANT DOMESTIC LAW 29. Article 100c § 1 no. 1 was inserted into the Code of Criminal Procedure by the Act on the fight against drug trafficking and other forms of organised crime ( Gesetz zur Bekämpfung des illegalen Rauschgifthandels und anderer Erscheinungsformen der organisierten Kriminalität ) of 15 July 1992. The relevant parts of Article 100 c of the Code of Criminal Procedure, in its version in force at the relevant time, provided : “(1) Without the knowledge of the person concerned no. 1 a) photographs may be taken and visual recordings be made, b) other special technical means intended for the purpose of surveillance may be used to investigate the facts of the case or to detect the perpetrator's whereabouts if the investigation concerns a criminal offence of considerable gravity and if other means of investigating the facts of the case or of detecting the perpetrator's whereabouts had less prospect of success or were more difficult, no. 2 private speech may be listened to and recorded using technical means ... (2) Measures pursuant to paragraph 1 may only be taken against the accused. ... Measures pursuant to paragraph 1 no. 1 (b) ... may be ordered against third persons only if it can be assumed, on the basis of specific facts, that they are in contact with or will contact the perpetrator and that the measure will make it possible to establish the facts or to determine the perpetrator's whereabouts and if other means would offer no prospect of success or would be considerably more difficult.” 30. Pursuant to Article 100d § 1 of the Code of Criminal Procedure, in its version in force at the relevant time – just as for an order to tap a person's telephone (Article 100b § 1 of the Code of Criminal Procedure) – a court order was necessary to authorise the use of technical devices to bug and to record conversations made in private under Article 100c § 1 no. 2 of the Code of Criminal Procedure. However, that Article did not prescribe a court order for measures of investigation taken under Article 100c § 1 no. 1. 31. Pursuant to Article 101 § 1 of the Code of Criminal Procedure, the person concerned by a measure under Article 100c § 1 no. 1 (b) of that Code shall be notified of the measure taken as soon as this is possible without endangering the purpose of the investigations, public safety, life and limb of another person or the possible further use of an undercover agent involved in the measure. 32. On 1 November 2000 Article 163f of the Code of Criminal Procedure, on long-term systematic surveillance of suspects, entered into force. Pursuant to paragraph 1 of that Article, such surveillance lasting for more than twenty-four hours non-stop or applied on more than two days, could only be ordered in respect of persons suspected of an offence of considerable gravity and if other means of investigating the facts of the case or the suspect's whereabouts had considerably less prospect of success or were considerably more difficult. The measure was to be ordered by the Public Prosecutor's Office (paragraph 3). Pursuant to paragraph 4, the measure had to be restricted to a maximum of one month; any further extension could only be ordered by a judge. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 33. The applicant complained that his observation via GPS and its aggregation with several further measures of surveillance, as well as the use of the data obtained thereby in the criminal proceedings against him, had breached his right to respect for his private life as provided in Article 8 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 34. The Government contested that argument. A. Admissibility 1. The parties'submissions a. The Government 35. The Government considered that the applicant had not fully exhausted domestic remedies as required by Article 35 of the Convention. In the proceedings before the domestic courts, he had failed to complain about his visual observation as such, which alone had established a link between himself and the data obtained by the GPS surveillance in that it had disclosed his presence in S.'s car. Moreover, the applicant had not contested the lawfulness of all surveillance measures other than the GPS surveillance, in particular the interception of his telecommunications, before the domestic courts. 36. The Government further took the view that the applicant could not claim to be the victim of a breach of his right to respect for his private life for the purposes of Article 34 of the Convention. They argued that the GPS surveillance of the car of his accomplice S. had not directly concerned him in person. b. The applicant 37. The applicant contested that view. He argued, in particular, that he had exhausted domestic remedies. He underlined that he had complained both before the domestic courts and before this Court about his surveillance via GPS, which had been applied in addition to further surveillance methods used at the same time, and had objected to the use of evidence obtained as a result of his surveillance via GPS and not only to the use of the GPS data as such. Furthermore, he had also complained throughout the proceedings that he was under total surveillance by an accumulation of different measures of surveillance in addition to the use of GPS. This was confirmed by the reasoning of the decisions of the domestic courts, which had addressed– and rejected – his arguments in this respect. 2. The Court's assessment 38. The Court notes, as regards the scope of the case before it, that the applicant complained under Article 8 about his observation via GPS. He argued that this measure, taken alone, was in breach of his right to respect for his private life and that in any event it breached Article 8 because of its aggregation with several further measures of surveillance. He further complained about the use of the data collected thereby in the criminal proceedings against him. The applicant did not contest the lawfulness of any of the additional surveillance measures other than the GPS surveillance. The Court observes that the applicant brought his complaint as defined above before the Düsseldorf Court of Appeal, the Federal Court of Justice and the Federal Constitutional Court, which all addressed and rejected it on the merits (see paragraphs 14, 18-22 and 23-28 respectively). Consequently, the Government's objection of non-exhaustion of domestic remedies must be dismissed. 39. As to the question whether the applicant may claim to be the victim of a breach of his right to respect for his private life for the purposes of Article 34 of the Convention in view of the fact that it was not himself, but his accomplice's car which had been subjected to surveillance via GPS, the Court considers that this issue is closely linked to the substance of his complaint under Article 8. It therefore joins the preliminary objection raised by the Government in this respect to the merits of the case. 40. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Whether there was an interference with private life a. The parties'submissions 41. In the applicant's view, his total surveillance via GPS had interfered with his right to respect for his private life. Even though the GPS receiver had been built into an object (S.'s car), it had been used to observe his (and S.'s) movements. It had enabled the investigating authorities to draw up a comprehensive pattern of his movements in public for months, by means of a measure which was very precise and difficult to detect. All his movements had been made known to third persons without his consent. The information gathered by the GPS surveillance had enabled the authorities to initiate further investigations, inter alia, at the places he had travelled to. 42. The Government took the view that there had not been an interference with the applicant's right to respect for his private life under Article 8 by the surveillance via GPS. This surveillance had not directly concerned the applicant in person as the GPS receiver had been built into the car of his accomplice S. and as the data collected had only revealed where the receiver had found itself at a particular time and not who had been travelling in S.'s car. b. The Court's assessment i. Recapitulation of the relevant principles 43. The Court reiterates that private life is a broad term not susceptible to exhaustive definition. Article 8 protects, inter alia, a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001 ‑ IX; Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003 ‑ I; and Perry v. the United Kingdom, no. 63737/00, § 36, ECHR 2003 ‑ IX (extracts) ). 44. There are a number of elements relevant to a consideration of whether a person's private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor (see Perry, cited above, § 37 ). A person walking along the street will inevitably be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character (see also Herbecq and the Association “Ligue des droits de l'homme” v. Belgium, nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, Decisions and Reports (DR) 92-B, p. 92, concerning the use of photographic equipment which does not involve the recording of the visual data obtained ). Private-life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain (see P.G. and J.H. v. the United Kingdom, cited above, § 57; Peck, cited above, § § 58 -59; and Perry, cited above, § 38 ). 45. Further elements which the Court has taken into account in this respect include the question whether there has been compilation of data on a particular individual, whether there has been processing or use of personal data or whether there has been publication of the material concerned in a manner or degree beyond that normally foreseeable. 46. Thus, the Court has considered that the systematic collection and storing of data by security services on particular individuals, even without the use of covert surveillance methods, constituted an interference with these persons'private lives (see Rotaru v. Romania [GC], no. 28341/95, § § 43-44, ECHR 2000 ‑ V; P.G. and J.H. v. the United Kingdom, cited above, § 57; Peck, cited above, § 59; and Perry, cited above, § 38; compare also Amann v. Switzerland [GC], no. 27798/95, §§ 65-67, ECHR 2000-II, where the storing of information about the applicant on a card in a file was found to be an interference with private life, even though it contained no sensitive information and had probably never been consulted ). The Court has also referred in this context to the Council of Europe's Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data, which came into force – inter alia for Germany – on 1 October 1985 and whose purpose is “to secure in the territory of each Party for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him” (Article 1), such data being defined as “any information relating to an identified or identifiable individual” (Article 2) (see P.G. and J.H. v. the United Kingdom, cited above, § 57 ). 47. The Court has further taken into consideration whether the impugned measure amounted to a processing or use of personal data of a nature to constitute an interference with respect for private life (see, in particular, Perry, cited above, §§ 40-41 ). Thus, it considered, for instance, the permanent recording of footage deliberately taken of the applicant at a police station by a security camera and its use in a video identification procedure as the processing of personal data about the applicant interfering with his right to respect for private life (ibid., §§ 39-43). Likewise, the covert and permanent recording of the applicants'voices at a police station for further analysis as voice samples directly relevant for identifying these persons in the context of other personal data was regarded as the processing of personal data about them amounting to an interference with their private lives (see P.G. and J.H. v. the United Kingdom, cited above, § § 59-60; and Perry, cited above, § 38 ). 48. Finally, the publication of material obtained in public places in a manner or degree beyond that normally foreseeable may also bring recorded data or material within the scope of Article 8 § 1 (see Peck, cited above, §§ 60-63, concerning disclosure to the media for broadcast use of video footage of the applicant taken in a public place; and Perry, cited above, § 38). ii. Application of these principles to the present case 49. In determining whether the surveillance via GPS carried out by the investigation authorities interfered with the applicant's right to respect for his private life, the Court, having regard to the above principles, will determine first whether this measure constituted a compilation of data on the applicant. It notes the Government's argument that this was not the case, given that the GPS receiver had been built into an object ( a car) belonging to a third person (the applicant's accomplice). However, in doing so, the investigating authorities clearly intended to obtain information on the movements of both the applicant and his accomplice as they had been aware from their previous investigations that both suspects had been using S.'s car together on the weekends of previous bomb attacks (see paragraphs 11 and 17 above; see also, mutatis mutandis, Lambert v. France, 24 August 1998, § 21, Reports of Judgments and Decisions 1998 ‑ V, where it was considered irrelevant to the finding of an interference with the applicant's private life that the telephone tapping in question had been carried out on the line of a third party ). 50. Moreover, the fact that the applicant must, just as S. was, be considered to have been the subject of the surveillance by GPS, is not in question, because information on the movements of S.'s car could only be linked to the applicant by additional visual surveillance to confirm his presence in that car. Indeed, none of the domestic courts expressed any doubts that the applicant had been subjected to surveillance via GPS (see, in particular, paragraphs 14, 17, 20 and 26 above). 51. The Court further notes that by the surveillance of the applicant via GPS, the investigation authorities, for some three months, systematically collected and stored data determining, in the circumstances, the applicant's whereabouts and movements in the public sphere. They further recorded the personal data and used it in order to draw up a pattern of the applicant's movements, to make further investigations and to collect additional evidence at the places the applicant had travelled to, which was later used at the criminal trial against the applicant (see paragraph 17 above). 52. In the Court's view, GPS surveillance is by its very nature to be distinguished from other methods of visual or acoustical surveillance which are, as a rule, more susceptible of interfering with a person's right to respect for private life, because they disclose more information on a person's conduct, opinions or feelings. Having regard to the principles established in its case-law, it nevertheless finds the above-mentioned factors sufficient to conclude that the applicant's observation via GPS, in the circumstances, and the processing and use of the data obtained thereby in the manner described above amounted to an interference with his private life as protected by Article 8 § 1. 53. Consequently, the Government's preliminary objection that the applicant may not claim to be the victim of a breach of his right to respect for his private life for the purposes of Article 34 of the Convention must equally be dismissed. 2. Whether the interference was justified a. Was the interference “in accordance with the law”? i. The parties'submissions α. The applicant 54. The applicant argued that the said interference had not been justified under Article 8 § 2. Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure had not been a sufficient legal basis for the interference. That provision had not been meant by the legislator to cover measures of surveillance unknown at the time of its adoption. Moreover, the term “other special technical means intended for the purpose of surveillance” contained in the said Article was not sufficiently clear and, having regard to possible technical developments in the future, its content was not foreseeable for the persons possibly concerned. This had implicitly been confirmed by the Federal Constitutional Court which had found that there was a risk of infringements of fundamental rights by the use of new forensic techniques and that the legislator had to safeguard the respect of those rights, if necessary, by additional legislative provisions (see paragraph 25 above). 55. Moreover, the applicant submitted that the legal provisions on the basis of which GPS surveillance had been ordered had not satisfied the qualitative requirements developed in the Court's case-law on secret measures of surveillance (he refers, in particular, to the case of Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006 ‑ XI and to that of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, 28 June 2007 ). In particular, there was no statutory limit on the duration of such surveillance. Furthermore, in view of the intensity of the interference, authorising the prosecution, as opposed to the investigating judge, to order that surveillance had not offered sufficient protection against arbitrariness. 56. The applicant further took the view that the use of numerous further surveillance measures in addition to GPS surveillance had led to his total surveillance by the State authorities and had violated his rights under Article 8 in that the law did not contain sufficient safeguards against abuse, in particular because no order by an independent tribunal had been necessary to authorise and supervise the surveillance measures in their entirety. A subsequent judicial review of the surveillance measures alone had not afforded sufficient protection to the persons concerned. It was carried out only if criminal proceedings were instituted at all following such a measure and if by that measure the prosecution had obtained evidence which it intended to use at the trial. Article 163f of the Code of Criminal Procedure (see paragraph 32 above) had not been in force at the relevant time and, in any event, did itself not contain sufficient safeguards against abuse. β. The Government 57. The Government argued that, even assuming that the surveillance of the applicant via GPS was considered an interference with the applicant's right to respect for his private life, that interference had been justified under paragraph 2 of Article 8. It had been based on Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, a legal provision which met the necessary qualitative requirements, in particular that of foreseeability. They took the view that the principles developed in the Court's case-law on the law's foreseeability in the context of cases concerning the interception of telecommunications could not be transferred to the present case concerning the surveillance via GPS as the latter interfered to a much lesser extent with the private life of the person concerned than telephone tapping. As had been confirmed by the domestic courts, it had been sufficiently clear that the term “other special technical means intended for the purpose of surveillance” under Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, whereby the legislator intended to authorise the use of future surveillance techniques, covered a surveillance via GPS. 58. Moreover, the Government submitted that the legal provisions at issue contained sufficient safeguards against arbitrary interference by the authorities with the citizens'rights. Surveillance by technical means such as GPS had only been authorised under Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure if the investigation concerned a criminal offence of considerable gravity. Under Article 100c § 2 of the Code of Criminal Procedure (see paragraph 29 above), such a measure could, as a rule, only be ordered against persons charged with a criminal offence. Under the legal provisions in force at the relevant time, the Public Prosecutor's Office had been authorised to issue a surveillance order. It had not been necessary to confer that power on a judge. In any event, there was a judicial review of the measures at issue in the subsequent criminal proceedings. Moreover, as the domestic courts had convincingly found, a court order for the surveillance via GPS had not been necessary in view of the fact that that measure had been used in addition to several further measures of surveillance. 59. Furthermore, the Government underlined that the person concerned by the surveillance measure had to be informed thereof as soon as this was possible without endangering the purpose of the investigations (Article 101 § 1 of the Code of Criminal Procedure, see paragraph 31 above). Moreover, the principle of proportionality had been respected in that under Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, the surveillance methods in question had only been authorised if other means of investigation had less prospect of success or were more difficult. The duration of a measure of surveillance via GPS also had to be proportionate. ii. The Court's assessment α. Relevant principles 60. Under the Court's case-law, the expression “in accordance with the law” within the meaning of Article 8 § 2 requires, firstly, that the measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring it to be accessible to the person concerned, who must, moreover, be able to foresee its consequences for him, and compatible with the rule of law (see, among other authorities, Kruslin v. France, 24 April 1990, § 27, Series A no. 176 ‑ A; Lambert, cited above, § 23; and Perry, cited above, § 45). 61. As to the requirement of legal “foreseeability” in this field, the Court reiterates that in the context of covert measures of surveillance, the law must be sufficiently clear in its terms to give citizens an adequate indication of the conditions and circumstances in which the authorities are empowered to resort to any such measures (see, among other authorities, Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82; Valenzuela Contreras v. Spain, 30 July 1998, § 46 (iii), Reports 1998 ‑ V; and Bykov v. Russia [GC], no. 4378/02, § 76, ECHR 2009 ‑ ... ). In view of the risk of abuse intrinsic to any system of secret surveillance, such measures must be based on a law that is particularly precise, especially as the technology available for use is continually becoming more sophisticated (see Weber and Saravia v. Germany (dec.), no. 54934/00, § 93, ECHR 2006 ‑ XI; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 75, 28 June 2007; Liberty and Others v. the United Kingdom, no. 58243/00, § 62, 1 July 2008; and Iordachi and Others v. Moldova, no. 25198/02, § 39, 10 February 2009). 62. The Court has further stated, in the context of Article 7 of the Convention, that in any system of law, including criminal law, however clearly drafted a legal provision may be, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. The Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see, inter alia, S.W. v. the United Kingdom, 22 November 1995, § 36, Series A no. 335 ‑ B; and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 ‑ II ). The Court considers that these principles, developed under Article 7, apply also in the present context. 63. In addition, in the context of secret measures of surveillance by public authorities, because of the lack of public scrutiny and the risk of misuse of power, compatibility with the rule of law requires that domestic law provides adequate protection against arbitrary interference with Article 8 rights (see, mutatis mutandis, Amann, cited above, §§ 76-77; Bykov, cited above, § 76; see also Weber and Saravia (dec.), cited above, § 94; and Liberty and Others, cited above, § 62 ). The Court must be satisfied that there exist adequate and effective guarantees against abuse. This assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 77, with reference to Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28). β. Application of those principles to the present case 64. The Court, examining whether the interference with the applicant's right to respect for his private life by his surveillance via GPS was “in accordance with the law” within the meaning of Article 8 § 2, considers that this interference had a basis in German statute law, Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, a provision which was accessible to the applicant. 65. As to the law's foreseeability and its compliance with the rule of law, the Court notes at the outset that in his submissions, the applicant strongly relied on the minimum safeguards which are to be set out in statute law in order to avoid abuses as developed by the Court in the context of applications concerning the interception of telecommunications. According to these principles, the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their communications monitored; a limit on the duration of such monitoring; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which data obtained may or must be erased or the records destroyed, have to be defined in statute law (see Weber and Saravia, cited above, § 95, with further references ). 66. While the Court is not barred from gaining inspiration from these principles, it finds that these rather strict standards, set up and applied in the specific context of surveillance of telecommunications (see also Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 76; Liberty and Others, cited above, § 62; and Iordachi and Others, cited above, § 39 ), are not applicable as such to cases such as the present one, concerning surveillance via GPS of movements in public places and thus a measure which must be considered to interfere less with the private life of the person concerned than the interception of his or her telephone conversations (see paragraph 52 above). It will therefore apply the more general principles on adequate protection against arbitrary interference with Article 8 rights as summarised above (see paragraph 63 ). 67. In determining whether the provisions on the applicant's surveillance via GPS complied with the requirement of “foreseeability”, the Court notes the applicant's argument that the term “other special technical means intended for the purpose of surveillance” contained in Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure was not sufficiently clear and could not be said to cover surveillance via GPS. On the contrary, the domestic courts, which are primarily called upon to interpret and apply domestic law (see, among many other authorities, Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998 ‑ II ), were unanimous in their finding that the said Article covered surveillance by such means (see paragraphs 14, 19 and 25 above). 68. The Court considers that it was clear from the wording of Article 100c § 1 no. 1 (b), read in the context of Article 100c § 1 no. 1 (a) and no. 2, that the technical means at issue covered methods of surveillance which were neither visual nor acoustical and were used, in particular, “to detect the perpetrator's whereabouts”. As the use of GPS does not constitute either visual or acoustical surveillance and allows the location of objects equipped with a GPS receiver and thus of persons travelling with or in those objects, the Court finds that the domestic courts'finding that such surveillance was covered by Article 100c § 1 no. 1 (b) was a reasonably foreseeable development and clarification of the said provision of the Code of Criminal Procedure by judicial interpretation. 69. In examining whether domestic law contained adequate and effective guarantees against abuse, the Court observes that in its nature conducting surveillance of a person by building a GPS receiver into the car he or she uses, coupled with visual surveillance of that person, permits the authorities to track that person's movements in public places whenever he or she is travelling in that car. It is true that, as the applicant had objected, there was no fixed statutory limit on the duration of such monitoring. A fixed time-limit had only subsequently been enacted in so far as under the new Article 163f § 4 of the Code of Criminal Procedure, the systematic surveillance of a suspect ordered by a Public Prosecutor could not exceed one month, and any further extension could only be ordered by a judge (see paragraph 32 above). However, the Court is satisfied that the duration of such a surveillance measure was subject to its proportionality in the circumstances and that the domestic courts reviewed the respect of the proportionality principle in this respect (see for an example paragraph 28 above). It finds that German law therefore provided sufficient guarantees against abuse on that account. 70. As to the grounds required for ordering a person's surveillance via GPS, the Court notes that under Article 100c § 1 no. 1 (b), § 2 of the Code of Criminal Procedure, such surveillance could only be ordered against a person suspected of a criminal offence of considerable gravity or, in very limited circumstances, against a third person suspected of being in contact with the accused, and if other means of detecting the whereabouts of the accused had less prospect of success or were more difficult. It finds that domestic law thus set quite strict standards for authorising the surveillance measure at issue. 71. The Court further observes that under domestic law the prosecution was able to order a suspect's surveillance via GPS, which was carried out by the police. It notes that in the applicant's submission, only conferring the power to order GPS surveillance on an investigating judge would have offered sufficient protection against arbitrariness. The Court observes that pursuant to Article 163f § 4 of the Code of Criminal Procedure, which entered into force after the applicant's surveillance via GPS had been carried out, systematic surveillance of a suspect for a period exceeding one month did indeed have to be ordered by a judge. It welcomes this reinforcement of the protection of the right of a suspect to respect for his private life. It notes, however, that already, under the provisions in force at the relevant time, surveillance of a subject via GPS has not been removed from judicial control. In subsequent criminal proceedings against the person concerned, the criminal courts could review the legality of such a measure of surveillance and, in the event that the measure was found to be unlawful, had discretion to exclude the evidence obtained thereby from use at the trial (such a review was also carried out in the present case, see, in particular, paragraphs 14, 19 and 21 above). 72. The Court considers that such judicial review and the possibility to exclude evidence obtained from an illegal GPS surveillance constituted an important safeguard, as it discouraged the investigating authorities from collecting evidence by unlawful means. In view of the fact that GPS surveillance must be considered to interfere less with a person's private life than, for instance, telephone tapping (an order for which has to be made by an independent body both under domestic law (see Article 100 b § 1 of the Code of Criminal Procedure, paragraph 30 above ) and under Article 8 of the Convention (see, in particular, Dumitru Popescu v. Romania (no. 2), no. 71525/01, § § 70-71, 26 April 2007, and Iordachi and Others, cited above, § 40), the Court finds subsequent judicial review of a person's surveillance by GPS to offer sufficient protection against arbitrariness. Moreover, Article 101 § 1 of the Code of Criminal Procedure contained a further safeguard against abuse in that it ordered that the person concerned be informed of the surveillance measure he or she had been subjected to under certain circumstances (see paragraph 31 above). 73. The Court finally does not overlook that under the Code of Criminal Procedure, it was not necessary for a court to authorise and supervise surveillance via GPS which was carried out in addition to other means of surveillance and thus all surveillance measures in their entirety. It takes the view that sufficient safeguards against abuse require, in particular, that uncoordinated investigation measures taken by different authorities must be prevented and that, therefore, the prosecution, prior to ordering a suspect's surveillance via GPS, had to make sure that it was aware of further surveillance measures already in place. However, having also regard to the findings of the Federal Constitutional Court on this issue (see paragraph 27 above), it finds that at the relevant time the safeguards in place to prevent a person's total surveillance, including the principle of proportionality, were sufficient to prevent abuse. 74. In view of the foregoing, the Court considers that the interference with the applicant's right to respect for his private life was “in accordance with the law” within the meaning of Article 8 § 2. b. Purpose and necessity of the interference i. The parties'submissions 75. The applicant considered that the interference at issue had not been necessary in a democratic society within the meaning of Article 8 § 2 because, as set out above (see paragraphs 54-56), the applicable law failed to protect him sufficiently against arbitrary interference by State authorities. 76. In the Government's view, the surveillance measure at issue had pursued legitimate aims as it had served the interests of national security, public safety, the prevention of crime and the protection of the rights of others. The measure had also been necessary in a democratic society. As set out above, there had been effective guarantees against abuse. It was true that the legislator, by adopting Article 163f § 4 of the Code of Criminal Procedure, had subsequently further strengthened the rights of the persons concerned in that it had made the surveillance measure subject to a judicial order and a time-limit. This did not, however, warrant the conclusion that the measure had not previously met the minimum standards set by the Convention. The applicant's surveillance via GPS for some two and a half months could not be considered disproportionate. Likewise, the accumulation of different methods of surveillance had not rendered the interference with the applicant's rights disproportionate. The visual surveillance, in particular, had been carried out almost exclusively at weekends and the gravity of the offence the applicant had been suspected of and the danger to the public had justified his surveillance in that manner. ii. The Court's assessment 77. The applicant's surveillance via GPS, ordered by the Federal Public Prosecutor General in order to investigate into several counts of attempted murder for which a terrorist movement had claimed responsibility and to prevent further bomb attacks, served the interests of national security and public safety, the prevention of crime and the protection of the rights of the victims. 78. In determining whether the applicant's surveillance via GPS as carried out in the present case was “necessary in a democratic society”, the Court reiterates that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see Leander v. Sweden, 26 March 1987, § 58, Series A no. 116; and Messina v. Italy (no. 2), no. 25498/94, § 65, ECHR 2000 ‑ X). In examining whether, in the light of the case as a whole, the measure taken was proportionate to the legitimate aims pursued, the Court notes that the applicant's surveillance via GPS was not ordered from the outset. The investigation authorities had first attempted to determine whether the applicant was involved in the bomb attacks at issue by measures which interfered less with his right to respect for his private life. They had notably tried to determine the applicant's whereabouts by installing transmitters in S.'s car, the use of which (other than with the GPS) necessitated the knowledge of where approximately the person to be located could be found. However, the applicant and his accomplice had detected and destroyed the transmitters and had also successfully evaded their visual surveillance by State agents on many occasions. Therefore, it is clear that other methods of investigation, which were less intrusive than the applicant's surveillance by GPS, had proved to be less effective. 79. The Court further observes that in the present case, the applicant's surveillance by GPS was added to a multitude of further previously ordered, partly overlapping measures of observation. These comprised the applicant's visual surveillance by both members of the North Rhine ‑ Westphalia Department for the Protection of the Constitution and by civil servants of the Federal Office for Criminal Investigations. It further included the video surveillance of the entry of the house he lived in and the interception of the telephones in that house and in a telephone box situated nearby by both of the said authorities separately. Moreover, the North Rhine-Westphalia Department for the Protection of the Constitution intercepted his postal communications at the relevant time. 80. The Court considers that in these circumstances, the applicant's surveillance via GPS had led to a quite extensive observation of his conduct by two different State authorities. In particular, the fact that the applicant had been subjected to the same surveillance measures by different authorities had led to a more serious interference with his private life, in that the number of persons to whom information on his conduct had become known had been increased. Against this background, the interference by the applicant's additional surveillance via GPS thus necessitated more compelling reasons if it was to be justified. However, the GPS surveillance was carried out for a relatively short period of time (some three months), and, as with his visual surveillance by State agents, affected him essentially only at weekends and when he was travelling in S.'s car. Therefore, he cannot be said to have been subjected to total and comprehensive surveillance. Moreover, the investigation for which the surveillance was put in place concerned very serious crimes, namely several attempted murders of politicians and civil servants by bomb attacks. As shown above, the investigation into these offences and notably the prevention of further similar acts by the use of less intrusive methods of surveillance had previously not proved successful. Therefore, the Court considers that the applicant's surveillance via GPS, as carried out in the circumstances of the present case, was proportionate to the legitimate aims pursued and thus “necessary in a democratic society” within the meaning of Article 8 § 2. 81. There has accordingly been no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 82. The applicant further claimed that the use in the criminal proceedings of information obtained by his surveillance in breach of Article 8, which had been the essential basis for his conviction, had infringed his right to a fair trial. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 83. The Government contested that argument. A. Admissibility 84. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. B. Merits 85. Having regard to its above finding that the applicant's surveillance via GPS has not breached Article 8 of the Convention, the Court considers that the use of information and evidence obtained thereby in the criminal proceedings against the applicant does not, in the circumstances of the present case, raise a separate issue under Article 6 § 1 of the Convention. | The Court held that there had been no violation of Article 8 of the Convention. The GPS surveillance and the processing and use of the data thereby obtained had admittedly interfered with the applicant’s right to respect for his private life. However, the Court noted, it had pursued the legitimate aims of protecting national security, public safety and the rights of the victims, and of preventing crime. It had also been proportionate: GPS surveillance had been ordered only after less intrusive methods of investigation had proved insufficient, had been carried out for a relatively short period (some three months), and had affected the applicant only when he was travelling in his accomplice’s car. The applicant could not therefore be said to have been subjected to total and comprehensive surveillance. Given that the investigation had concerned very serious crimes, the applicant’s surveillance by GPS had thus been necessary in a democratic society. |
978 | Satellite dish | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Land Code 15. The renting of a flat is regulated primarily in Chapter 12 of the Land Code. 16. Section 2 provides that a tenancy agreement shall be in writing if the landlord or the tenant so request. In the event that a provision in the agreement is difficult to interpret, it is in practice ultimately interpreted to the disadvantage of the person who formulated the agreement. As it is almost always the landlord who draws up the tenancy agreement, the landlord has to take the responsibility for an agreement that is difficult to interpret. In most cases, landlords use standard agreements, the content of which is the result of negotiations between rental market organisations. 17. Section 3 contains provisions for the term and cancellation of tenancies. A tenancy agreement which is applicable for an indefinite period, as in the present case, must be cancelled for it to cease to apply. According to section 4, an indefinite tenancy agreement can be cancelled and thus cease to apply on the first day of the month following three months'notice. Section 8 provides that, in a case such as the present, a notice of cancellation shall be in writing and comply with certain rules governing service. 18. Section 23 provides, inter alia, that a tenant may not use the flat for a purpose other than that intended. Under section 24, the tenant is under an obligation to take good care of the flat. In general, he or she shall take care of it in a way that can be reasonably expected of an orderly person. Further, the tenant is liable to make good all damage caused by his or her carelessness or negligence. 19. Section 25 contains provisions on disturbances and demands on the tenant for keeping the flat sound, orderly and in good condition. Subsection 1 provides: “When using the flat, the tenant shall ensure that persons living in the vicinity are not subjected to disturbances which may be harmful to their health or otherwise impair their dwelling environment to an extent not reasonably tolerable .... In his use of the flat, the tenant shall also in other respects do all that is necessary to keep the property sound, orderly and in good condition. ...” Disturbances and failure to meet those requirements may result in the tenancy agreement being forfeited under section 42. Special provisions and regulations can be included in the tenancy agreement. A tenant's refusal to abide by such provisions and regulations may also constitute a failure to fulfil the requirements for keeping the flat sound, orderly and in good condition. 20. It follows from section 46 that if the landlord has given notice of cancellation of the tenancy agreement, the tenant may still be entitled to have the agreement extended. However, subsection 1 of section 46 lists a number of situations in which the tenant loses the right to renewal. The first situation, laid down in subsection 1(1), is the forfeiture of the tenancy. Section 42 stipulates the conditions in which a tenancy agreement is deemed to be forfeited, including residential disturbances and failure to keep the flat sound, orderly and in good condition. The second situation, regulated in subsection 1(2), was relied on by the landlord and applied by the Court of Appeal in the present case. It concerns the tenant's neglect of their obligations. If the obligations are neglected to such an extent that it is not reasonable for the tenancy agreement to be extended, the tenant may lose the right to such renewal. The preparatory works to the latter provision state that the requirements of orderliness must be high in order to make it possible for the landlord to maintain the property in good order and condition (SOU 1961:47, pp. 84-85). The interests of the landlord shall be weighed against the reasonableness of the tenancy being terminated. Distressing personal circumstances may be taken into account. The possibility of another flat in the same area should also be considered (Government Bill 1968:91, Appendix A, p. 91). Examples of negligence are, for example, failure to pay rent, subletting without permission, refusing to grant the landlord access to the flat, depositing rent without valid reasons, residential disturbances, a failure to keep the flat sound, orderly and in good condition, and a breach of clauses in the tenancy agreement. B. Proceedings in tenancy disputes 21. A large number of tenancy disputes are examined by the eight regional rent review boards, whose task it is, under section 4 of the Lease Review Boards and Rent Review Boards Act ( Lagen om arrendenämnder och hyresnämnder, 1973:1988), to examine disputes concerning, for example, the terms of a tenancy and disputes relating to the renewal of a tenancy agreement. A decision by a Rent Review Board in a renewal dispute, as in the present case, can be appealed to the Svea Court of Appeal, in accordance with the Land Code, Chapter 12, section 70 in conjunction with section 49. No appeal lies against the court's decision, as provided for in section 10 of the Svea Court of Appeal Rent Cases Judicial Procedure Act ( Lagen om rättegången i vissa hyresmål i Svea hovrätt, 1994:831). C. Constitutional provisions on freedom of expression and freedom of information 22. Chapter 1, section 3, subsection 3 of the Constitutional Law on Freedom of Expression ( Yttrandefrihetsgrundlagen ) states the following: “ Subject to any contrary provision of this Constitutional Law neither public authorities nor other public bodies shall prohibit or prevent the possession or employment of such technical aids as are necessary to receive radio programmes or to view or hear the content of technical recordings on grounds of the content of a radio programme or technical recording,.The same shall apply to any ban on the construction of landline networks for the transmission of radio programmes .” 23. Chapter 2, section 1, subsection 1 of the Instrument of Government ( Regeringsformen ) provides, inter alia, as follows: “ Every citizen shall be guaranteed the following rights and freedoms in his relations with the public institutions: 1. freedom of expression: that is, the freedom to communicate information and express thoughts, opinions and sentiments, whether orally, pictorially, in writing, or in any other way; 2. freedom of information: that is, the freedom to procure and receive information and otherwise acquaint oneself with the utterances of others; ...” Section 12 provides that the enumerated rights and freedoms may be restricted only to satisfy a purpose acceptable in a democratic society. The restriction may never go beyond what is necessary having regard to the purpose which occasioned it, nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the fundaments of democracy. Furthermore, no restriction may be imposed solely on grounds of a political, religious, cultural or other such opinion. Under section 13, freedom of expression and information can only be restricted on grounds of national security, national provision of supplies, public order and safety, the good name of an individual, the sanctity of private life, and the prevention and prosecution of crime. Freedom of expression may also be restricted in commercial activities. 24. The Constitutional Law on Freedom of Expression and the Instrument of Government apply to the relationship between individuals and public bodies. They do not apply to relationships between individuals. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 25. The applicants complained that their freedom to receive information had been breached because the restrictions imposed on them either had not been prescribed by law or had been more far-reaching than necessary in a democratic society. Moreover, they claimed that the consequences – the eviction from their flat and the move to another town – had been disproportionate to the aims pursued. They relied on Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The parties'submissions 26. The Government submitted that the complaint was incompatible ratione materiae or manifestly ill-founded. They argued that the dispute in the case had been limited to the question of the actual positioning of the satellite dish, having regard, primarily, to contractual obligations. The alleged interference had not arisen as an effect of a ruling by a public authority on the right to receive information or even the right to use or own a satellite dish. Instead, it had come about only as an effect of the Court of Appeal's interpretation and application of an obligation in a contract between two private parties within the framework of private litigation. In any event, the Swedish authorities would only be responsible to the extent that the State had a positive obligation to protect the rights of the applicants in a case of this nature. In this connection the Government were of the opinion that the Court of Appeal had struck a fair balance between the competing interests of the landlord and the applicants and that there did not exist a positive obligation to protect the applicants'right to receive information from the interference of others. There had therefore not been an interference by a public authority within the meaning of Article 10 of the Convention. 27. The Government argued that were the Court to find that Article 10 was applicable and had been infringed, the interference in question was prescribed by law, specifically Chapter 12 of the Land Code, and that it served the legitimate aim of protecting the rights of others, including those of the landlord, other tenants and third parties. As to the question whether the measure had been “necessary” within the meaning of Article 10, they claimed that a fair balance had been struck between the landlord's right to property and its interest in maintaining order and good conditions on the property, on the one hand, and the applicants'right to receive information by means of a private satellite dish, on the other. Moreover, the proceedings had been fair at every level, the two instances involved having given extensive and detailed reasons after holding hearings and inspecting the satellite installation in question. Thus, having regard also to the margin of appreciation, the alleged interference had been proportionate to the legitimate aim pursued and “ necessary ” in terms of Article 10 § 2. 28. The applicants submitted that the grounds for contesting the landlord's action had not been only their denial that the positioning of the satellite was in breach of the lease, but also that that action infringed their right to freedom of information under the Swedish Constitution and Article 10 of the Convention. They further claimed that the Court of Appeal had not balanced the various interests in any real or meaningful sense. It had not attached proper significance to the applicants'right to freedom of information and had failed to take into account that there had been no safety risks in the individual case, instead allowing the landlord to make general risk assessments. The applicants therefore claimed that there had been an interference with their rights under Article 10. This had occurred as a consequence of the Court of Appeal's application of the law and, accordingly, the State's exercise of judicial power in a civil - law dispute. Consequently, the State could not evade its responsibility in the matter. 29. The applicants further asserted that the Court of Appeal's decision lacked a basis in law, as their satellite installation, which had not been affixed to the structure of the building, had not violated Rule 13 of the tenancy agreement and so had not breached the Land Code. Furthermore, the interference in the case had not been “necessary”, as a fair balance between the competing interests had not been struck. In this connection they reiterated that their rights under Article 10 had been disregarded and that no individual safety assessment had been made. Moreover, broadcasts from certain TV channels – of particular importance to them on account of their cultural background – were available exclusively via a satellite dish. This had not been disputed in the domestic proceedings. Finally, there had been no margin of appreciation, as no vital State interests had been at issue. Instead, the reasons given by the Court of Appeal related to the landlord's interests. In sum, the interference had not been proportionate or “necessary” within the meaning of Article 10 § 2. B. The Court's assessment 1. Admissibility 30. The Government argued that the case concerned a dispute between two private parties over a contractual obligation and that there had not been intervention by a public authority such as to bring any positive obligation of the State into play. 31. The Court reiterates that, under Article 1 of the Convention, each Contracting State “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention”. As the Court stated in Marckx v. Belgium (13 June 1979, § 31, Series A no. 31; see also Young, James and Webster v. the United Kingdom, 13 August 1981, § 49, Series A no. 44), in addition to the primarily negative undertaking of a State to abstain from interference in Convention guarantees, “there may be positive obligations inherent” in such guarantees. The responsibility of a State may then be engaged as a result of not observing its obligation to enact domestic legislation. 32. The Court reiterates, further, that Article 10 applies to judicial decisions preventing a person from receiving transmissions from telecommunications satellites ( see Autronic AG v. Switzerland, 22 May 1990, §§ 47-48, Series A no. 178). Moreover, the genuine and effective exercise of freedom of expression under Article 10 may require positive measures of protection, even in the sphere of relations between individuals (see Özgür Gündem v. Turkey, no. 23144/93, §§ 42-46, ECHR 2000-III; Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000; and Appleby and Others v. the United Kingdom, no. 44306/98, § 39, ECHR 2003 ‑ VI). 33. Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court's interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary, discriminatory or, more broadly, inconsistent with the principles underlying the Convention (see Pla and Puncernau v. Andorra, 13 July 2004, § 59, ECHR 2004-VIII). 34. In the present case the Court notes that the Court of Appeal, in its decision of 20 December 2005, applied and interpreted not only the tenancy agreement concluded between the applicants and the landlord but also Chapter 12 of the Land Code. Further, it ruled on the applicants'right to freedom of information laid down in the Swedish Constitution and the Convention. Domestic law, as interpreted in the last resort by the Court of Appeal, therefore made lawful the treatment of which the applicants complained (see Marckx and Young, James and Webster, cited above, and VgT Verein gegen Tierfabriken v. Switzerland, 28 June 2001, § 47, ECHR 2001-VI ). In effect, the applicants'eviction was the result of the court's ruling. The Court finds that the responsibility of the respondent State within the meaning of Article 1 of the Convention for any resultant breach of Article 10 may be engaged on this basis. 35. Consequently, this complaint is not incompatible ratione materiae. Nor is it manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) Whether there was an interference with the applicants'rights under Article 10 of the Convention 36. The responsibility of the respondent State having been established, the Court of Appeal's ruling that the applicants'tenancy agreement should be terminated because of their refusal to dismantle the satellite dish in question amounted to an “interference by a public authority” in the exercise of the rights guaranteed by Article 10. (b) Whether the interference was “prescribed by law” 37. Whereas the Government claimed that the interference was prescribed by law, the applicants submitted that the Court of Appeal's decision lacked a basis in law, as their satellite installation had not been affixed to the wall and had therefore not been in breach of the tenancy agreement and the Land Code. 38. The Court observes that the Rent Review Board and the Court of Appeal came to different conclusions as to whether the satellite installation at issue constituted an “outdoor aerial ” in breach of Rule 13 of the tenancy agreement and the obligations under Chapter 12, section 25 of the Land Code. It is of the opinion that both interpretations were viable and that the interference can therefore be considered as having been “prescribed by law” within the meaning of Article 10 § 2. (c) Whether the interference pursued a legitimate aim 39. In finding against the applicants, the Court of Appeal had regard, inter alia, to the landlord's interest in upholding order and good practice. The decision could thus be said to have been aimed at the “protection of the ... rights of others” within the meaning of Article 10 § 2. (d) Whether the interference was “necessary in a democratic society” 40. The Court reiterates that, as a consequence of the Court of Appeal's decision, the applicants were effectively restricted from receiving information disseminated in certain television programmes broadcast via satellite. 41. The right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him or her (see, among other authorities, Leander v. Sweden, 26 March 1987, § 74, Series A no. 116). In a case like the present one, where the desired information was available without the broadcasters'restrictions through the use of the technical equipment at issue, the general principles of freedom of expression become applicable, as appropriate. 42. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, whose extent will vary according to the case. Where, as in the instant case, there has been an interference with the exercise of the rights and freedoms guaranteed in Article 10 § 1, the supervision must be strict, because of the importance of the rights in question. The necessity for restricting them must be convincingly established (see, among other authorities, Autronic AG, cited above, § 61). 43. The Court's task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation (see, inter alia, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measure taken was “proportionate to the legitimate aims pursued”. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 ( see, among other authorities, Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI ). 44. In the instant case the Court observes that the applicants wished to receive television programmes in Arabic and Farsi from their native country or region. That information included, for instance, political and social news that could be of particular interest to the applicants as immigrants from Iraq. Moreover, while such news might be the most important information protected by Article 10, the freedom to receive information does not extend only to reports of events of public concern, but covers in principle also cultural expressions as well as pure entertainment. The importance of the latter types of information should not be underestimated, especially for an immigrant family with three children, who may wish to maintain contact with the culture and language of their country of origin. The right at issue was therefore of particular importance to the applicants. 45. It should be stressed that it has not been claimed that the applicants had any other means of receiving these or similar programmes at the time of the impugned decision than through the use of the satellite installation in question, nor that their satellite dish could be installed in a different location. They might have been able to obtain some news through foreign newspapers and radio programmes, but these sources of information only cover parts of what is available via television broadcasts and cannot in any way be equated with the latter. Moreover, it has not been shown that the landlord later installed broadband and internet access or other alternative means which gave the tenants in the building the possibility to receive these television programmes. 46. It is true that a satellite dish mounted on or extending outside the façade of a building may pose safety concerns, in particular since a landlord may be held responsible for damage caused by a falling dish. The Court of Appeal noted that this was the main reason for the landlord's refusal to allow the applicants'installation. However, in the instant case this aspect cannot carry much weight, as the evidence in the domestic case showed that the installation did not pose any real safety threat. It was examined by an engineer and both the Rent Review Board and the Court of Appeal inspected it before concluding that it was safe. While it might be convenient for a landlord to make general risk assessments without having to check individual installations, such considerations cannot carry much weight when set against the applicants'interests. 47. In the domestic proceedings the landlord also referred to physical and aesthetic damage, as well as obstruction of access to the flat, as reasons for banning the satellite installation. These concerns were not directly addressed by the Court of Appeal, but it did state that the landlord had a weighty and reasonable interest in upholding order and good practice. In any event, there is no indication that these additional concerns were of any practical significance in the applicants'case. In this connection it should be mentioned that the applicants'flat was located in one of the suburbs of Stockholm, in a tenement house with no particular aesthetic aspirations. 48. The Court further notes the Court of Appeal's finding that, while the applicants'interest in receiving the television broadcasts had to be taken into consideration, their right to freedom of information did not have such a bearing on the case that it could be considered to have any real importance. From this statement, the Court cannot but conclude that the appellate court, in weighing the interests involved, failed to apply standards in conformity with Article 10. 49. Particular importance must also be attached to the outcome of the instant case, namely, the applicants'eviction from the flat in which they had lived for more than six years. The applicants stated that, as a result, they had to move to another city, thus incurring negative consequences of a practical, economic and social nature. The Court considers that evicting the applicants and their three children from their home was a measure which cannot be considered proportionate to the aim pursued. 50. Having regard to the above, the Court concludes that, even if a certain margin of appreciation is afforded to the national authorities, the interference with the applicants'right to freedom of information was not “necessary in a democratic society” and that the respondent State failed in their positive obligation to protect that right. There has accordingly been a violation of Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 51. For reasons similar to those relied on under Article 10 of the Convention, the applicants complained that the eviction from their flat gave rise to a violation of their right to respect for their home under Article 8. 52. The Government contested that argument. 53. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 54. However, having regard to the finding relating to Article 10 (see paragraph 50 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 8. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 55. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 56. The applicants claimed 66, 000 Swedish kronor ( SEK – approximately 6, 5 00 euros ( EUR ) ) in respect of pecuniary damage. Their claim concerned the increased costs of the first applicant's journeys to and from work for a two-year period following their move to Västerås. In respect of non-pecuniary damage, they claimed SEK 50,000 (about EUR 5,0 00) each or other amounts which the Court considered reasonable. 57. The Government contested the claim in respect of pecuniary damage, stating that the applicants could have avoided the additional travelling costs by accepting the landlord's offer to remain in the flat. As regards non-pecuniary damage, the Government left the matter to the Court's discretion. 58. The Court considers that the first applicant must have sustained pecuniary damage on account of the longer journeys to and from work and finds this claim reasonable. It therefore awards it in full. Further, the Court finds it appropriate to make an award for non-pecuniary damage. Ruling on an equitable basis, it awards the applicants EUR 5,000 jointly under that head. B. Costs and expenses 59. The applicants also claimed SEK 229,774 (approximately EUR 2 2, 5 00) for the costs and expenses incurred after the conclusion of the domestic proceedings. This amount included SEK 216,575 (EUR 21 ,0 00) in lawyers'fees for 158 hours of work; the remainder (SEK 12,131) consisting mainly of translation expenses. 60. The Government found the applicants'claims excessive. They maintained that reasonable compensation for costs should not exceed SEK 66,000 (EUR 6,5 00) exclusive of VAT. In addition, SEK 1, 000 (EUR 100 ) was acceptable for expenses. 61. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 10 ,000, inclusive of VAT, covering costs under all heads for the proceedings before the Court. C. Default interest 62. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression – freedom to receive information) of the Convention. It observed in particular that the satellite dish had enabled the applicants and their children to receive television programmes in Arabic and Farsi from their native country and region. That information – which included political and social news and, almost equally importantly, cultural expression and entertainment – was of particular interest to them as an immigrant family who wished to maintain contact with the culture and language of their country of origin. It had not been claimed that the applicants had any other means of receiving such programmes at the time or that they could have placed the satellite dish elsewhere. Nor could news obtained from foreign newspapers and radio programmes in any way be equated with information available via television broadcasts. The landlord’s concerns about safety had been examined by the domestic courts, who had found that the installation did not pose any real safety threat. Moreover, the fact that the applicants had effectively been evicted from their home with their three children had been disproportionate to the aim pursued. |
133 | Sexual abuse | II. RELEVANT DOMESTIC LAW AND PRACTICE 72. By Article 151 § 1 of the Criminal Code, sexual intercourse with a person under 14 years of age is a punishable offence (statutory rape). Consent is not a valid defence in such cases. 73. Consent is likewise irrelevant where the victim is more than 14 years old, but did not “understand the essence and meaning of the occurrence” (Article 151 § 2 of the Code). That provision has been applied in cases where the victim did not grasp the meaning of the events owing to a mental disorder (see judgment no. 568 of 18 August 1973, case no. 540/73, Supreme Court -I). 74. Article 152 § 1 of the Criminal Code defines rape as : “sexual intercourse with a woman (1) incapable of defending herself, where she did not consent; (2) who was compelled by the use of force or threats; (3) who was brought to a state of helplessness by the perpetrator.” 75. Although lack of consent is mentioned explicitly only in the first sub-paragraph, the Supreme Court has held that it is an element inherent in the whole provision ( see judgment no. 568, cited above). 76. According to judicial practice, the three sub - paragraphs of Article 152 § 1 can only be applied alternatively, each of them referring to a separate factual situation. The Supreme Court has held that general references to two or all of the sub-paragraphs are not acceptable (see judgment no. 247 of 24 April 1974, case no. 201/74, Supreme Court-I; judgment no. 59 of 19 May 1992, case no. 288/90, Supreme Court-I; and many others). 77. Therefore, an accused person may be found guilty of rape only if it has been established that he had sexual intercourse with a woman in circumstances covered by one of the three sub-paragraphs. 78. The first and third sub-paragraphs concern particular factual situations where the victim was in a state of helplessness at the time of sexual intercourse. The third sub-paragraph refers to cases where the perpetrator put the victim in a state of helplessness before raping her, whereas the first sub-paragraph refers to cases where he took advantage of the victim's existing state of helplessness. 79. The courts have stated that a victim is in a state of helplessness (“incapable of defending herself” or “brought to a state of helplessness ”) only in circumstances where she has no capacity to resist physically owing to disability, old age or illness (see judgment no. 484 of 29 July 1983, case no. 490/83, and judgment no. 568, cited above) or because of the use of alcohol, medicines or drugs (see judgment no. 126 of 11 April 1977, case no. 69/77, Supreme Court-II). 80. The second sub-paragraph is the provision applicable in all other cases of alleged rape. Thus, where no special circumstances such as the state of helplessness of the victim are reported, an investigation into an alleged rape will concentrate on establishing whether or not the victim was coerced into having sexual intercourse by the use of force or threats. 81. It is an established view in the case-law and legal theory that rape under the second sub-paragraph of Article 152 § 1 of the Criminal Code is a “two ‑ step” offence – that is to say, the perpetrator first starts employing force or threats and then penetrates the victim. 82. The parties in the present case offered their views on the meaning of the words “use of force and threats” and their interpretation in practice (see paragraphs 113, 122 and 123 below). 83. The Supreme Court has stated that lack of consent is to be deduced from the fact that a situation covered by one of the three sub-paragraphs of Article 152 § 1 has been established, either from the victim's state of helplessness or from the fact that physical or psychological force has been used (see judgment no. 568, cited above). 84. In one case, the Supreme Court stated that “force” was not only to be understood as direct violence, but could also consist of placing the victim in a situation such that she could see no other solution than to submit against her will (see judgment no. 520 of 19 July 1973, case no. 414/73). In that particular case, the perpetrator, after demonstrating his desire for close relations with the victim by his behaviour over a period of two or three days (following her and trying to hold her and kiss her), entered her room, locked the door and asked her to undress. She refused, whereupon he tried to spread her legs apart. Realising that she had no other choice, the victim opened the window and jumped, sustaining serious injury. The perpetrator was convicted of attempted rape resulting in serious injury. 85. Legal commentators have not commented in detail on situations where coercion through force or threats may be considered to have been established, apparently taking the view that this was a matter for judicial interpretation (Al. Stoynov, Наказателно право, Особена част, 1997; A. Girginov, Наказателно право, Особена част, 2002). One commentator has stated that the essential characteristic of rape is the victim's lack of consent and that the three sub-paragraphs of Article 152 § 1 of the Criminal Code embody different situations of lack of consent. He further notes that in previous centuries the utmost resistance by the victim was required and that that view is now outdated. Without reference to case ‑ law, he considers that what is now required is nothing more than the resistance necessary to eliminate any doubt as to the victim's lack of consent (N. Antov, Проблеми на изнасилването, 2003). 86. Under Article 152 § 1 of the Criminal Code, rape committed by a man against a woman is punishable by two to eight years'imprisonment. At the material time, Article 157 § 1 of the Code provided for one to five years'imprisonment in cases of forced sexual intercourse with a person of the same sex. In 2002 the punishment prescribed under the latter provision was brought into line with that applicable in cases of rape under Article 152 § 1, and is now two to eight years'imprisonment. 87. At the material time, the age of consent in respect of sexual intercourse with a person of the same sex was 16 years (Article 157 § 2 of the Code). In 2002 it was lowered to 14 years. III. RELEVANT COMPARATIVE AND INTERNATIONAL LAW AND PRACTICE A. Provisions on rape in the domestic law of some European countries 88. In the legal systems of a number of European States, rape and sexual assault are “gender-neutral” offences, whereas in other countries rape may only be committed by a man against a woman. 89. The minimum age of consent for sexual activity in most States is 14, 15 or 16 years. In some countries, there is a different age of consent for sexual acts without penetration and for sexual acts with penetration, or different penalties depending on the age of the victim. The approaches vary significantly from one country to another. 90. Article 375 §§ 1 and 2 of the Belgian Criminal Code (referred to by Interights), as amended in 1989, read: “Any act of sexual penetration, of whatever nature and by whatever means, committed on a person who does not consent to it shall constitute the crime of rape. In particular, there is no consent where the act is forced by means of violence, coercion or ruse or was made possible by the victim's disability or physical or mental deficiency.” 91. Article 241 § 1 of the Czech Criminal Code ( Law no. 140/1961, as amended) provides: “A person who coerces another into an act of sexual penetration or a similar sexual act through violence or the threat of imminent violence or by taking advantage of the person's helplessness shall be liable to imprisonment for a term of two to eight years.” 92. Sections 216 ( 1 ) and 217 of the Danish Penal Code (referred to by the intervener) provide: “Any person who coerces [another into having] sexual intercourse by violence or under threat of violence shall be guilty of rape and liable to imprisonment for a term not exceeding eight years. The placing of a person in such a position that the person is unable to resist shall be equivalent to violence ... ” “ Any person who by means of unlawful coercion (according to section 260 of this Act) other than violence or the threat of violence procures sexual intercourse for himself, shall be liable to imprisonment for a term not exceeding four years.” 93. Chapter 20, sections 1 and 3, of the Finnish Penal Code (as amended in 1998) provides: “Section 1: Rape (1) A person who coerces another into having sexual intercourse by the use or threat of violence shall be sentenced for rape to imprisonment for at least one year and at most six years. (2) A person shall also be guilty of rape if he/she takes advantage of the incapacity of another to defend himself/herself and has sexual intercourse with him/her, after rendering him/her unconscious or causing him/her to be in a state of incapacity owing to fear or another similar reason ... Section 3: Coercion into having sexual intercourse (1) If the rape, in view of the low level of violence or threat and the other particulars of the offence, is deemed to have been committed under mitigating circumstances, the offender shall be sentenced for coercion into having sexual intercourse to imprisonment for at most three years. (2) A person who coerces another into having sexual intercourse by a threat other than that referred to in section 1(1) shall be guilty of coercion into having sexual intercourse.” 94. Articles 222-22, 222-23 and 227-25 of the French Criminal Code provide: “Sexual aggression is any sexual assault committed by violence, coercion, threats or surprise.” “Any act of sexual penetration, whatever its nature, committed against another person by violence, coercion, threats or surprise, shall be considered rape. Rape shall be punishable by fifteen years'imprisonment.” “A sexual offence committed without violence, coercion, threats or surprise by an adult on the person of a minor under 15 years of age shall be punished by five years'imprisonment and a fine of 75,000 euros .” 95. The following information about French case-law on rape may be gathered from the authoritative publication Juris-Classeur (2002): (i) The words “violence, coercion, threats or surprise” are given a broad meaning in practice. For example, in one case it was stated that the fact that the victim was begging the perpetrator to stop, without further resistance, where she had previously agreed to enter his car and to be kissed by him, was sufficient to establish that there was rape ( judgment of the Court of Cassation, Criminal Division (“ Cass. crim. ”), 10 July 1973, Bulletin Criminel (“ Bull. crim. ”) no. 322; Revue de Science Criminelle, 1974, p. 594, observations of Levasseur; see also, for an opposing view, Crim. , 11 October 1978, Dalloz 1979. IR, 120). The victim's refusal may be inferred from the circumstances, such as paralysing shock, as a result of which the victim could not protest or escape ( Cass. crim ., 13 March 1984, Bull. crim. no. 107). (ii) There is “surprise” where the victim cannot freely consent because, for example, she is physically or mentally disabled ( Cass. crim ., 8 June 1984, Bull. crim. no. 226), in a particular psychological state, involving depression, fragility, or simply distress ( Cass. crim ., 12 November 1997, Juris-Data no. 2000-005087; Paris Court of Appeal, 30 March 2000, Juris-Data no. 2000-117239), or where the perpetrator used trickery to deceive the victim as to the real situation ( Cass. crim ., 14 April 1995, Juris-Data no. 1995-002034). (iii) The courts have considered that there is always “surprise”, and therefore rape, where the victim is of such a low age as not to understand the concept of sexuality and the nature of the acts being imposed ( Cass. crim., 11 June 1992, Bull. crim. no. 228; Limoges Court of Appeal, 5 April 1995, Juris-Data no. 1995-042693; Paris Court of Appeal, 14 November 2000, Juris-Data no. 2000-134658). In some other cases, however, it has been stated that in principle the age of the victim cannot as such, without additional elements, establish the existence of “surprise” ( Cass. crim ., 1 March 1995, Bull. crim. no. 92). 96. The relevant part of Article 177 (Sexual coercion; Rape) of the German Criminal Code reads : “1. Anyone who coerces another person ( 1 ) by force, ( 2 ) by the threat of immediate danger to life or limb, or ( 3 ) by exploiting a situation in which the victim is defenceless and at the mercy of the actions of the perpetrator into submitting to sexual acts performed by the perpetrator or by a third person or into performing such acts on the perpetrator or on the third person, shall be punished by imprisonment for not less than one year.” 97. Article 197 § 1 of the Hungarian Criminal Code (Law no. 4 of 1978) provides: “A person who by violent action or a direct threat to life or limb forces a person to have sexual intercourse, or uses a person's incapacity to defend himself/herself or to express his/her will to have sexual intercourse shall be guilty of a serious offence punishable by imprisonment for two to eight years.” 98. In Ireland, section 2(1) of the Criminal Law (Rape) Act 1981 and section 9 of the Criminal Law (Rape) (Amendment) Act 1990 (referred to by the intervener) provide: “A man commits rape if (a) he has sexual intercourse with a woman who at the time of intercourse does not consent and (b) at the time he knows she does not consent or is reckless as to whether or not she is consenting.” “It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of the person, any failure or omission by that person to offer resistance to the act does not of itself constitute consent to that act.” 99. Article 180 § 1 of the Slovenian Criminal Code reads: “Anyone who compels a person of the same or the opposite sex to submit to sexual intercourse by force or the threat of imminent attack on life and limb shall be sentenced to imprisonment from one to ten years.” 100. In the United Kingdom, section 1(1) of the Sexual Offences (Amendment) Act 1976 (referred to by the intervener) provides: “[A] man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or is reckless as to whether she consents to it.” B. Recommendation Rec (2002)5 of the Committee of Ministers of the Council of Europe on the protection of women against violence 101. The Committee of Ministers recommends that member States adopt and implement, in the manner most appropriate to each country's national circumstances, a series of measures to combat violence against women. Paragraph 35 of the appendix to the recommendation states that, in the field of criminal law, member States should, inter alia : “ – penalise any sexual act committed against non-consenting persons, even if they do not show signs of resistance; ... – penalise any abuse of the position of a perpetrator, and in particular of an adult vis ‑ à-vis a child.” C. The International Criminal Tribunal for the former Yugoslavia 102. In Prosecutor v. Anto Furundžija ( case no. IT-95-17/1-T, judgment of 10 December 1998 ), in the context of the question whether or not forced oral sexual penetration may be characterised as rape under international law, the Trial Chamber made the following relevant remarks about rape under international criminal law: “The Trial Chamber notes the unchallenged submission ... that rape is a forcible act: this means that the act is'accomplished by force or threats of force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression'. ... ... all jurisdictions surveyed by the Trial Chamber require an element of force, coercion, threat, or acting without the consent of the victim: force is given a broad interpretation and includes rendering the victim helpless.” 103. The Trial Chamber defined rape as : “sexual penetration ... by coercion or force or threat of force against the victim or a third person.” 104. Noting that the terms “coercion ”, “ force ”, or “ threat of force” from the Furundžija definition were not intended to be interpreted narrowly, the Trial Chamber in another case ( Prosecutor v. Kunarac, Kovač and Vuković, case no. IT-96-23, judgment of 22 February 2001 ) observed : “In stating that the relevant act of sexual penetration will constitute rape only if accompanied by coercion or force or threat of force against the victim or a third person, the Furundžija definition does not refer to other factors which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim, which ... as discussed below, is in the opinion of this Trial Chamber the accurate scope of this aspect of the definition in international law. ... the basic underlying principle common to [the national legal systems surveyed is ] that sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim ... [F]orce, threat of force or coercion ... are certainly the relevant considerations in many legal systems but the full range of [the relevant] provisions ... suggest that the true common denominator which unifies the various systems may be a wider or more basic principle of penalising violations of sexual autonomy. ” 105. In Kunarac, Kovač and Vuković, a Muslim girl in an occupied area was taken by armed soldiers to a building which served as military headquarters. After being raped by two soldiers there, she was brought to a room where she herself initiated sexual contact with the accused Mr Kunarac, the commanding officer. The Trial Chamber noted that the victim had been told by soldiers that she should satisfy their commander sexually or risk her life. The victim therefore “did not freely consent to any sexual intercourse with Kunarac [as she] was in captivity and in fear for her life”. The Trial Chamber also rejected Kunarac's defence that he was not aware of the fact that the victim had only initiated sexual intercourse with him because she feared for her life. The Chamber found that, even if Kunarac had not heard the threats made by other soldiers, he could not have been “confused” by the behaviour of the victim, given the general context of the existing war-time situation and the specifically delicate situation of the Muslim girls in the region. 106. In the context of the above facts, the Trial Chamber made the following observations on the elements of rape under international law: “The basic principle which is truly common to [the reviewed] legal systems is that serious violations of sexual autonomy are to be penalised. Sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant. In practice, the absence of genuine and freely given consent or voluntary participation may be evidenced by the presence of the various factors specified in other jurisdictions – such as force, threats of force, or taking advantage of a person who is unable to resist. A clear demonstration that such factors negate true consent is found in those jurisdictions where absence of consent is an element of rape and consent is explicitly defined not to exist where factors such as use of force, the unconsciousness or inability to resist of the victim, or misrepresentation by the perpetrator [are present]. ... coercion, force, or threat of force [are] not to be interpreted narrowly ... coercion in particular would encompass most conduct which negates consent ... In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by ... sexual penetration ... where [it] occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.” 107. In the same case, on an appeal by the perpetrators based on the argument, inter alia, that there was no rape without force or threat of force and the victim's “continuous” or “genuine” resistance, the Appeals Chamber, in its judgment of 12 June 2002, stated: “The Appellants'bald assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts. Secondly, with regard to the role of force in the definition of rape, the Appeals Chamber notes that the Trial Chamber appeared to depart from the Tribunal's prior definitions of rape. However, in explaining its focus on the absence of consent as the conditio sine qua non of rape, the Trial Chamber did not disavow the Tribunal's earlier jurisprudence, but instead sought to explain the relationship between force and consent. Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape. In particular, the Trial Chamber wished to explain that there are “factors [other than force] which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim”. A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force ... For the most part, the Appellants in this case were convicted of raping women held in de facto military headquarters, detention centres and apartments maintained as soldiers'residences. As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors. Typically, the women were raped by more than one perpetrator and with a regularity that is nearly inconceivable. ( Those who initially sought help or resisted were treated to an extra level of brutality). Such detentions amount to circumstances that were so coercive as to negate any possibility of consent.” D. The United Nations Committee on the Elimination of Discrimination against Women 108. In its General Recommendation 19 of 29 January 1992 on violence against women, the Committee made the following recommendation in paragraph 24: “(a) States parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act; (b) States parties should ensure that laws against ... abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity. ...” THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 3, 8 AND 13 OF THE CONVENTION 109. The applicant complained that Bulgarian law and practice did not provide effective protection against rape and sexual abuse, as only cases where the victim had resisted actively were prosecuted, and that the authorities had not investigated the events of 31 July and 1 August 1995 effectively. In her view, the above amounted to a violation of the State's positive obligations to protect the individual's physical integrity and private life and to provide effective remedies in this respect. 110. The relevant Convention provisions read: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 § 1 “Everyone has the right to respect for his private ... life ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties'submissions 1. The applicant 111. The applicant considered that domestic law and practice in rape cases should determine the existence, or lack, of consent to sexual intercourse on the basis of all relevant factors. In her view, a legal framework and practice that required proof of physical resistance by the victim, and thus left unpunished certain acts of rape, were inadequate. 112. The applicant relied on the written expert opinion she submitted (emphasising that the majority of children or other young rape victims displayed passive psychological reactions of panic – see paragraphs 69-71 above) and also on developments in international and comparative law as to the elements of the crime of rape. 113. The applicant then offered her analysis of Bulgarian law and practice concerning rape and sexual abuse. She made the following submissions: (i) According to the practice of the Bulgarian investigating and prosecuting authorities, the prosecution of rape was only possible if there was evidence of the use of physical force and evidence of physical resistance. Lack of such evidence would lead to the conclusion that sexual intercourse had been consensual. (ii) It was not possible to support the above assertion directly with a case study since investigators'and prosecutors'decisions were not publicly available; they could only be found in the relevant case files and there was no system of sorting, reporting or analysis that could serve as the basis of a study. Also, the impugned practice was not based on written instructions but on institutional tradition and culture. (iii) Because of the existing policy of the prosecuting authorities not to bring charges unless there was evidence of physical force and resistance, the issue had not been addressed directly by the courts. (iv) Nevertheless, an overview of the reported judgments of the Supreme Court and the Supreme Court of Cassation (judgments of lower courts were not reported) provided indirect evidence about the type of cases that were likely to be brought to court by the prosecuting authorities. The applicant had searched all reported judgments in rape cases and produced copies of twenty-one judgments considered relevant by her counsel. (v) Almost all reported cases concerned rape accompanied by substantial use of physical force and/or threats. Those cases typically involved the following acts of violence: dragging the victim from a car to a house and locking her up; tearing clothes and hitting the victim; punching the victim on the head and kicking her; suffocating the victim; causing concussion and fracture of the nose; or beating causing substantial bleeding. In several cases the victim had been threatened with violence or other consequences. In three cases the victim had committed or attempted to commit suicide as a result. (vi) The research had produced only two cases in which a more context ‑ sensitive approach could be noted. In one case a teacher, having attempted flirting, forced his student to have sex with him repeatedly over a certain period of time by threatening her with negative consequences at school and with violence. The Supreme Court found that there had been repeated acts of rape committed through the use of threats and acknowledged that the victim had gradually been put into a state of a psychological dependence. In another case, a 14-year-old girl who suffered from epilepsy and was mentally retarded had been raped by an acquaintance of the family; the courts noted that the girl had offered weak resistance (she had tried to get up after being pushed down on the floor by the perpetrator) but concluded that that “level of resistance”, seen in the context of the girl's age and health, had been “sufficient to demonstrate her unwillingness to have sex”. 114. The applicant submitted a copy of a letter by a Bulgarian psychotherapist working with victims of sexual violence, who stated that in her experience the prosecuting authorities brought charges only in cases where the attacker was a stranger to the victim, where there were serious injuries or where there were witnesses. In the applicant's view, that confirmed her allegation that the predominant tendency in practice was to infer consent from insufficient proof of physical resistance. 115. She further stated that, by setting at 14 the age of consent for sexual intercourse and at the same time limiting the prosecution of rape to cases of violent resistance by the victim, the authorities had left children insufficiently protected against rape. 116. The applicant submitted that, in her case, the prosecutors had put undue emphasis on the absence of physical violence and had not taken into account the fact that, at the age of 14, she had never taken important decisions herself, particularly under the pressure of time. The prosecutors had failed to have regard to the unlikelihood of a 14-year-old girl who had never had sexual intercourse consenting to sex with two men in a row. 117. Furthermore, the investigation had not been thorough and complete. The crucial issue of the timing of all the moves of the three men and the applicant during the night in question – which could have shown that there had been no visit to a restaurant after the rape at the reservoir – had not been investigated. Contradictions in the evidence had been disregarded. The police patrol who had stopped the group on their way to the reservoir had not been identified. The investigator had accredited the testimony of the alleged perpetrators and of witnesses called by them and had at the same time disbelieved or ignored the testimony of other witnesses and the applicant's account of the events. 118. In the applicant's view, seen in the context of all the relevant facts, her clear and consistent testimony that she had begged P. to stop and had pushed him away until he had twisted her arms, and her account of the distress she had felt and of her resistance – reasonable in the circumstances – should have led to the conviction of the perpetrators if a correct interpretation of “rape”, consonant with the State's positive obligations under Articles 3, 8 and 13 of the Convention, had been applied. 2. The Government 119. The Government submitted that the investigation had been thorough and effective. All possible steps had been taken: seventeen persons had been questioned, some of them repeatedly, experts in psychiatry and psychology had been appointed and all aspects of the case had been explored. The Government therefore considered that the conclusion of the national authorities that P. and A. must have acted on the assumption of the applicant's consent had been well-founded. In particular, the authorities had relied on all evidence about the events of 31 July to 1 August 1995, including information about the behaviour of the applicant. Furthermore, the applicant had gone out with P. after the events and there had been allegations by witnesses that her mother had attempted to extort money from P. and A. in return for dropping the rape allegations. 120. In the Government's submission, the facts of the case did not, therefore, concern the issue of protecting a person's integrity or ill ‑ treatment. As a result, no positive obligations arose under Articles 3 or 8 of the Convention. 121. The Government maintained that, in any event, Bulgarian law and practice in rape cases and their application in the present case did not violate any positive obligation that could arise under the Convention. 122. Describing the domestic law and practice in their initial submissions at the admissibility stage, the Government stated that proof of physical resistance was required in cases of rape and that, moreover, in accordance with “international practice, including in France” rape was only possible between strangers, whereas the applicant knew the alleged perpetrators. 123. In their submissions on the merits, the Government corrected their earlier statements and submitted that lack of consent was an essential element of rape under Bulgarian law. Proof of lack of consent was derived from evidence demonstrating that the victim was in a state of helplessness or had been put in such a state by the perpetrator, or from evidence of physical or psychological violence by the perpetrator. The Government submitted copies of several relevant judgments of the Supreme Court. They did not dispute the reliability of the analysis of Bulgarian case-law offered by the applicant. 124. In the applicant's case – the Government argued – after a careful and impartial investigation, the authorities had not found it established, to the level of proof necessary to secure a criminal conviction, that rape had been committed. On the other hand, it was open to the applicant to submit a civil action for damages against the alleged perpetrators. She would be required to prove the unlawfulness of the perpetrators'acts, but no proof of mens rea would be necessary. 125. Finally, the Government submitted that the applicant had had effective criminal and civil remedies at her disposal, as required by Article 13 of the Convention. 3. Submissions by Interights (a) General submissions 126. The intervener stated that over the past two decades the traditional definition of rape had undergone reform in civil and common law jurisdictions and in international law. This was the result of the evolving understanding of the nature of the offence and the manner in which it was experienced by the victim. Research had demonstrated that women, and more particularly minors, often did not physically resist rape either because they were physically unable to do so through paralysing fear, or because they were seeking to protect themselves against the increasing level of force being used against them. 127. Interights submitted that the reform of rape law reflected a shift from a “historical approach” to the “equality approach” to the question of consent. Rape was an offence against women's autonomy and its essential element was lack of consent. A central concern underlying reforms in rape law had been to clarify that it was not necessary to establish that the accused had overcome the victim's physical resistance in order to prove lack of consent. 128. That tendency had been reflected in developments in international criminal law. In particular, the International Criminal Tribunals for Rwanda and the former Yugoslavia had characterised as rape sexual penetration “in circumstances which are coercive” or committed through “coercion or force or threat of force”. That approach had also been taken in the Statute of the International Criminal Court and its draft Rules. (b) Submissions on the law of several countries 129. Interights submitted copies of reports on the relevant law of several European and non-European countries, prepared by legal scholars or professionals, or by research assistants. The information and assessments contained therein may be summarised as follows. (i) Belgium 130. The list in Article 375 of the Belgian Criminal Code, amended in 1989, of situations where there is no consent was meant to preserve the case-law dating from before 1989. The list of situations is not considered to be exhaustive, although one commentator is of the opposite opinion. 131. Historically, what was required to prove rape was proof of sufficiently serious and physically violent acts to break, paralyse or destroy the resistance of the victim. The 1989 amendments replaced the notion of “serious threats” (present in the Criminal Code since 1867) with the broader notion of “coercion” which includes not only fear for one's physical integrity but also any other general fear. 132. Nowadays, the prosecution is required to prove sexual penetration and lack of consent. Any elements that might show lack of consent will be taken into account, but the prosecution will mostly try to prove the existence of at least one of the factors “nullifying consent”, set out in the second paragraph of Article 375, namely violence, coercion, ruse or disability. 133. Lack of consent is proved where there is proof of physical resistance. However, even if there is no proof of physical violence or physical resistance, proof of coercion is sufficient. Whether or not there was coercion is a question to be assessed with reference to the capacities of the victim (age, actual state at the time of the facts). 134. There is a different age of consent for sexual acts of any kind (statutory indecent assault) on the one hand, and for acts involving sexual penetration (statutory rape) on the other. The age of consent for sexual penetration is 14 years and the age of consent for sexual acts of any kind is 16 years. As a result, sexual intercourse with a person aged 14 to 16, in the absence of proof of lack of consent, would be punished as statutory indecent assault. In practice, where the victim is between 14 and 16 years, charges of statutory indecent assault are more frequent than charges of rape. (ii) Denmark 135. Coercion is nowadays understood broadly and is not limited to threats of serious violence. 136. Evidence of lack of consent is particularly important in cases where the accused and the victim knew each other. While the act of saying “no” would be a sufficient expression of lack of consent, proving that it was said and understood as being meant seriously could be difficult. 137. In a case from 1982, a man accused of raping a 16-year-old girl was acquitted on the ground that he had not understood that the intercourse had been involuntary. The accused had taken the girl for a ride in his van. According to him, the girl had wished to be taken to her home. According to the girl, she had felt compelled to accept the offer to be taken home because of the situation, particularly once the accused had put his bicycle in his car. On the way, the accused had talked about his sexual problems and needs. The accused had regarded the fact that the girl had let him discuss these subjects as an acceptance that the situation was developing towards intimate contact. The victim had been afraid that the accused would turn violent if she did not let him talk. At one point, the accused had stopped the car and asked the victim to get into the luggage compartment, where sexual intercourse had taken place. The accused had asked the girl several times whether she agreed or not. The victim stated that she had had a mental block and had been afraid. The city court had convicted the accused, finding that the girl had not consented and that the accused had acted with intent, as he would only have had reason to put questions to the victim if he had doubted that she agreed to sexual intercourse. The court of appeal, however, found that the statement of the accused that he had perceived the victim's passivity as acceptance could not be disregarded and acquitted him. (iii) Ireland 138. The principle that the prosecution must prove lack of consent, and not the presence of force, is well established. Absence of consent is a matter of fact for the jury to decide, having regard to all relevant circumstances and following the judge's directions. As regards the mens rea of rape, a defence of “genuine belief” is open to the accused, so that he is entitled to acquittal if it genuinely did not occur to him that the victim might not be consenting. (iv) The United Kingdom 139. Before 1976 the common-law definition of rape was unlawful sexual intercourse with a woman without her consent, by force, fear or fraud. Historically, injury to the body was required as proof of force and as proof of resistance. 140. Under current law, after 1976, the prosecution must prove that the victim did not consent. Absence of consent is the key element of the actus reus. The burden is on the prosecution. There is no statutory definition of consent or lack of it. “Does not consent” is a question of fact for the jury, which it decides after hearing the judge's directions. In the leading case of Olugboja [1982] Queen's Bench 320, [1981] 3 All England Law Reports 443, two teenage girls had been given a lift home by the accused and his friend. Instead of taking the girls home, the two men took them to another house where the accused person's friend raped one of the girls, who was 16 years old. The accused then also had intercourse with her. He told her to take off her trousers. She did so because she was frightened and the room was dark. She told him “why can't you leave me alone”. He pushed her onto a sofa and had intercourse with her. She did not cry out or struggle. He was convicted of rape. Lord Justice Dunn said: “[The jury] should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent ... [The jury] should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all relevant circumstances, and in particular the events leading up to the act, and her reaction to them showing their impact on her mind.” 141. According to some legal commentators, despite Olugboja, the reality is that prosecution is unlikely to proceed where women have submitted in circumstances of similar psychological duress and entrapment to those in Olugboja, but in the absence of threats. 142. The prosecution must also prove the mens rea of rape, which is either knowledge that the victim does not consent or recklessness as to whether she consents or not. The perpetrator is reckless where he “never gave it a thought”, or was aware that the other person “might not be consenting but goes on just the same” ( R. v. Gardiner [1994] Criminal Law Reports 455). (v) The United States of America 143. The fifty States define what is commonly referred to as “rape” in a number of different ways but, despite significant variations in wording, the States converge on the question of non-consent. In particular, it is an established principle that a victim is not required physically to resist her attacker to prove that she did not consent to the act. Verbal expressions of dissent suffice. In Commonwealth v. Berkowitz (641 A.2d 1161 ( Pennsylvania, 1994)), the defendant had sexual intercourse with an acquaintance in his college dormitory room although she said “no” throughout the experience. The Pennsylvania courts held that the victim's repeated expressions of “no” were sufficient to prove her non-consent. 144. In thirty-seven States, non-consensual intercourse without extrinsic force (force extrinsic to that required to effect penetration) is expressly criminalised by statute as a felony, a sexual crime of the highest order, or a misdemeanour. Although it appears from the language of the remaining thirteen State codes that extrinsic force may be required, courts in twelve states have accepted, for example, that the statutory force requirement was met when the defendant only pushed or pinned his victim down or otherwise physically manipulated her; the test for “force” was found to be “whether the act was against the will of [the victim]” ( Freeman v. State, 959 S.W.2d 401 (Arkansas 1998)). Thus, “force” was established where the perpetrator “pushed his body weight against [the victim]” and he was “large” or “husky” and the victim “petite” or “small” ( State v. Coleman, 727 A.2d 246 ( Connecticut, 1999) and State v. Plunkett, 934 P.2d 113 (Kansas, 1997)). The New Jersey Supreme Court has stated: “[A]ny act of sexual penetration ... without the affirmative and freely given permission of the victim ... constitutes the offence of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful ( In the Interest of M.T.S ., 609 A.2d 1266, 1277 (N.J. 1992)).” 145. Historically, a number of States required a rape victim to display the “utmost resistance”. Today, that requirement has been rejected. Only two States continue to require a sexual assault victim to display “earnest” resistance (Alabama and West Virginia); however, they do not require her to resist if she reasonably believes that resistance would be futile or would result in serious bodily injury ( Richards v. State, 457 So.2d 893 (Alabama, 1985) – earnest resistance proved by victim's pleas to put her down and stop). 146. Increasingly, courts in the United States are taking into account relevant social science data indicating that sexual assault victims react in unpredictable ways under conditions of psychological and physical abuse. In 1992, for example, the Supreme Court of New Jersey, when rejecting the resistance requirement for a sexual assault conviction, referred to “empirical research” to discredit “the assumption that resistance to the utmost or to the best of the woman's ability was the most reasonable or rational response to rape”. Indeed, rapists often employ subtle coercion or bullying when this is sufficient to overcome their victims. In most cases of rape against children, violence is not necessary to obtain submission. Courts are also recognising that some women become frozen with fear at the onset of a sexual attack and thus cannot resist ( People v. Iniguez, 872 P.2d 1183, 1189 (California, 1994)). (vi) Other legal systems 147. Interights also submitted analyses of the relevant law in Australia, Canada and South Africa, concluding that lack of consent was the defining element of rape and sexual abuse in those countries and that proof of use of physical force by the perpetrator or of physical resistance by the victim was not required. B. The Court's assessment 1. General approach (a) The existence of a positive obligation to punish rape and to investigate rape cases 148. Having regard to the nature and the substance of the applicant's complaints in this particular case, the Court finds that they fall to be examined primarily under Articles 3 and 8 of the Convention. 149. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see A. v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699, § 22; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; and E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002). 150. Positive obligations on the State are inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the State's margin of appreciation, effective deterrence against grave acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, pp. 11-13, §§ 23- 24 and 27, and August v. the United Kingdom (dec.), no. 36505/ 02, 21 January 2003). 151. In a number of cases, Article 3 of the Convention gives rise to a positive obligation to conduct an official investigation (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3290, § 102). Such a positive obligation cannot be considered in principle to be limited solely to cases of ill-treatment by State agents (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002-I). 152. Further, the Court has not excluded the possibility that the State's positive obligation under Article 8 to safeguard the individual's physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3164, § 128,). 153. On that basis, the Court considers that States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal ‑ law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution. (b) The modern conception of the elements of rape and its impact on the substance of member States'positive obligation to provide adequate protection 154. In respect of the means to ensure adequate protection against rape, States undoubtedly enjoy a wide margin of appreciation. In particular, perceptions of a cultural nature, local circumstances and traditional approaches are to be taken into account. 155. The limits of the national authorities'margin of appreciation are nonetheless circumscribed by the Convention provisions. In interpreting them, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within Contracting States and respond, for example, to any evolving convergence as to the standards to be achieved (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI). 156. The Court observes that, historically, proof of physical force and physical resistance was required under domestic law and practice in rape cases in a number of countries. The last decades, however, have seen a clear and steady trend in Europe and some other parts of the world towards abandoning formalistic definitions and narrow interpretations of the law in this area (see paragraphs 88-108 and 126- 47 above). 157. Firstly, it appears that a requirement that the victim must resist physically is no longer present in the statutes of European countries. 158. In common-law countries, in Europe and elsewhere, reference to physical force has been removed from the legislation and/or case - law ( see paragraphs 98, 100 and 138- 47 above, in relation to Ireland, the United Kingdom, the United States of America and other countries ). Irish law explicitly states that consent cannot be inferred from lack of resistance (see paragraph 98 above). 159. In most European countries influenced by the continental legal tradition, the definition of rape contains references to the use of violence or threats of violence by the perpetrator. It is significant, however, that in case ‑ law and legal theory lack of consent, not force, is seen as the constituent element of the offence of rape (see paragraphs 90-97, 99 and 130- 37 above). 160. Belgian law was amended in 1989 to state that any act of sexual penetration would constitute rape when committed in respect of a person who had not given consent. Thus, while the reference to “violence, duress or ruse” as punishable means of imposing a non-consensual act remains in the statute, violence and/or physical resistance are not elements of rape in Belgian law (see paragraphs 90 and 130- 3 4 above). 161. Regardless of the specific wording chosen by the legislature, in a number of countries the prosecution of non-consensual sexual acts in all circumstances is sought in practice by means of interpretation of the relevant statutory terms (“coercion”, “violence”, “duress”, “threat”, “ruse”, “surprise” or others) and through a context-sensitive assessment of the evidence (see paragraphs 95 and 130- 47 above). 162. The Court also notes that the member States of the Council of Europe, through the Committee of Ministers, have agreed that penalising non-consensual sexual acts, “[including] in cases where the victim does not show signs of resistance”, is necessary for the effective protection of women against violence (see paragraph 101 above) and have urged the implementation of further reforms in this area. 163. In international criminal law, it has recently been recognised that force is not an element of rape and that taking advantage of coercive circumstances to proceed with sexual acts is also punishable. The International Criminal Tribunal for the former Yugoslavia has found that, in international criminal law, any sexual penetration without the victim's consent constitutes rape and that consent must be given voluntarily, as a result of the person's free will, assessed in the context of the surrounding circumstances (see paragraphs 102- 07 above). While the above definition was formulated in the particular context of rapes committed against the population in the conditions of an armed conflict, it also reflects a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse. 164. As submitted by the intervener, the evolving understanding of the manner in which rape is experienced by the victim has shown that victims of sexual abuse – in particular, girls below the age of majority – often provide no physical resistance because of a variety of psychological factors or because they fear violence on the part of the perpetrator. 165. Moreover, the development of law and practice in that area reflects the evolution of societies towards effective equality and respect for each individual's sexual autonomy. 166. In the light of the above, the Court is persuaded that any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual's sexual autonomy. In accordance with contemporary standards and trends in that area, the member States'positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim. (c) The Court's task in the present case 167. In the light of the above, the Court's task is to examine whether or not the impugned legislation and practice and their application in the case at hand, combined with the alleged shortcomings in the investigation, had such significant flaws as to amount to a breach of the respondent State's positive obligations under Articles 3 and 8 of the Convention. 168. The issue before the Court is limited to the above. The Court is not concerned with allegations of errors or isolated omissions in the investigation; it cannot replace the domestic authorities in the assessment of the facts of the case; nor can it decide on the alleged perpetrators'criminal responsibility. 2. Application of the Court's approach 169. The applicant alleged that the authorities'attitude in her case was rooted in defective legislation and reflected a predominant practice of prosecuting rape perpetrators only in the presence of evidence of significant physical resistance. 170. The Court observes that Article 152 § 1 of the Bulgarian Criminal Code does not mention any requirement of physical resistance by the victim and defines rape in a manner which does not differ significantly from the wording found in statutes of other member States. As seen above, many legal systems continue to define rape by reference to the means used by the perpetrator to obtain the victim's submission (see paragraphs 74 and 88 ‑ 100). 171. What is decisive, however, is the meaning given to words such as “force” or “threats” or other terms used in legal definitions. For example, in some legal systems “force” is considered to be established in rape cases by the very fact that the perpetrator proceeded with a sexual act without the victim's consent or because he held her body and manipulated it in order to perform a sexual act without consent. As noted above, despite differences in statutory definitions, the courts in a number of countries have developed their interpretation so as to try to encompass any non-consensual sexual act (see paragraphs 95 and 130- 47). 172. In the present case, in the absence of case-law explicitly dealing with the question whether every sexual act carried out without the victim's consent is punishable under Bulgarian law, it is difficult to arrive at safe general conclusions on this issue on the basis of the Supreme Court's judgments and legal publications (see paragraphs 75-85 above). Whether or not a sexual act in a particular case is found to have involved coercion always depends on a judicial assessment of the facts. A further difficulty is the absence of a reliable study of prosecutorial practice in cases which never reached the courts. 173. Nonetheless, it is noteworthy that the Government were unable to provide copies of judgments or legal commentaries clearly disproving the allegations of a restrictive approach in the prosecution of rape. The Government's own submissions on the elements of rape in Bulgarian law were inconsistent and unclear (see paragraphs 122 - 23 above). Finally, the fact that the vast majority of the Supreme Court's reported judgments concerned rapes committed with the use of significant violence (except those where the victim was physically or mentally disabled), although not decisive, may be seen as an indication that most of the cases where little or no physical force and resistance were established were not prosecuted (see paragraphs 74-85, 113, 122 and 123 above). 174. The Court is not required to seek conclusive answers about the practice of the Bulgarian authorities in rape cases in general. It is sufficient for the purposes of the present case to observe that the applicant's allegation of a restrictive practice is based on reasonable arguments and has not been disproved by the Government. 175. Turning to the particular facts of the applicant's case, the Court notes that, in the course of the investigation, many witnesses were heard and an expert report by a psychologist and a psychiatrist was ordered. The case was investigated and the prosecutors gave reasoned decisions, explaining their position in some detail (see paragraphs 44-65 above). 176. The Court recognises that the Bulgarian authorities faced a difficult task, as they were confronted with two conflicting versions of the events and little “direct” evidence. The Court does not underestimate the efforts made by the investigator and the prosecutors in their work on the case. 177. It notes, nonetheless, that the presence of two irreconcilable versions of the facts obviously called for a context-sensitive assessment of the credibility of the statements made and for verification of all the surrounding circumstances. Little was done, however, to test the credibility of the version of the events proposed by P. and A. and the witnesses called by them. In particular, the witnesses whose statements contradicted each other, such as Ms T. and Mr M., were not confronted. No attempt was made to establish with more precision the timing of the events. The applicant and her representative were not given the opportunity to put questions to the witnesses whom she accused of perjury. In their decisions, the prosecutors did not devote any attention to the question whether the story proposed by P. and A. was credible, although some of their statements called for caution, such as the assertion that the applicant, 14 years old at the time, had started caressing A. minutes after having sex for the first time in her life with another man (see paragraphs 16-65 above). 178. The Court thus considers that the authorities failed to explore the available possibilities for establishing all the surrounding circumstances and did not assess sufficiently the credibility of the conflicting statements made. 179. It is highly significant that the reason for that failure was, apparently, the investigator's and the prosecutors'opinion that, since what was alleged to have occurred was a “date rape”, in the absence of “direct” proof of rape such as traces of violence and resistance or calls for help, they could not infer proof of lack of consent and, therefore, of rape from an assessment of all the surrounding circumstances. That approach transpires clearly from the position of the investigator and, in particular, from the regional prosecutor's decision of 13 May 1997 and the Chief Public Prosecutor's decision of 24 June 1997 (see paragraphs 55, 60, 61, 64 and 65 above). 180. Furthermore, it appears that the prosecutors did not exclude the possibility that the applicant might not have consented, but adopted the view that in any event, in the absence of proof of resistance, it could not be concluded that the perpetrators had understood that the applicant had not consented (see the text of the prosecutors'decisions in paragraphs 64 and 65 above). The prosecutors forwent the possibility of proving the perpetrators'mens rea by assessing all the surrounding circumstances, such as evidence that they had deliberately misled the applicant in order to take her to a deserted area, thus creating an environment of coercion, and also by judging the credibility of the versions of the facts proposed by the three men and witnesses called by them (see paragraphs 21, 63 and 66-68 above). 181. The Court considers that, while in practice it may sometimes be difficult to prove lack of consent in the absence of “direct” proof of rape, such as traces of violence or direct witnesses, the authorities must nevertheless explore all the facts and decide on the basis of an assessment of all the surrounding circumstances. The investigation and its conclusions must be centred on the issue of non-consent. 182. That was not done in the applicant's case. The Court finds that the failure of the authorities in the applicant's case to investigate sufficiently the surrounding circumstances was the result of their putting undue emphasis on “direct” proof of rape. Their approach in the particular case was restrictive, practically elevating “resistance” to the status of defining element of the offence. 183. The authorities may also be criticised for having attached little weight to the particular vulnerability of young persons and the special psychological factors involved in cases concerning the rape of minors (see paragraphs 58-60 above). 184. Furthermore, they handled the investigation with significant delays (see paragraphs 44-46 above). 185. In sum, the Court, without expressing an opinion on the guilt of P. and A., finds that the investigation of the applicant's case and, in particular, the approach taken by the investigator and the prosecutors in the case fell short of the requirements inherent in the States'positive obligations – viewed in the light of the relevant modern standards in comparative and international law – to establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse. 186. As regards the Government's argument that the national legal system provided for the possibility of a civil action for damages against the perpetrators, the Court notes that this assertion has not been substantiated. In any event, as stated above, effective protection against rape and sexual abuse requires measures of a criminal-law nature (see paragraphs 124 and 148- 53 above). 187. The Court thus finds that in the present case there has been a violation of the respondent State's positive obligations under both Articles 3 and 8 of the Convention. It also holds that no separate issue arises under Article 13 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 188. Comparing the texts of Articles 157 § 2 and 152 of the Bulgarian Criminal Code, which concern the age of consent for sexual activity, the applicant complained that the law afforded better protection against rape to “homosexual children” than to “heterosexual children”. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 189. In the light of its findings above, the Court considers that it is not necessary to examine the complaint under Article 14 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 190. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 191. The applicant stated that she was continuing to suffer psychological trauma years after she had been raped. That was to a large extent due to the fact that the relevant law and practice had not ensured effective protection. Furthermore, the investigation in her case had been flawed and had victimised her. 192. On that basis, referring to several of the Court's judgments in cases of sexual abuse, the applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. 193. The Government submitted that the amount claimed was excessive. 194. The Court considers that the applicant must have suffered distress and psychological trauma resulting at least partly from the shortcomings in the authorities'approach found in the present case. Making an assessment on an equitable basis, the Court awards her EUR 8,000. B. Costs and expenses 195. The applicant claimed EUR 4,740 for a total of 118.5 hours of legal work on her case, at the rate of EUR 40 per hour. She submitted a fee agreement with her lawyer, signed in 2003 by her mother, and a time sheet. The applicant's lawyer explained that the fee agreement had been signed by the applicant's mother because he had been initially hired by her, the applicant having been under age at the time. 196. The Government stated that the fee agreement was not valid because the applicant had turned 18 in September 1998 and since then her mother had no longer been entitled to act on her behalf. Even at the time of the initial, apparently oral, agreement between the mother and the lawyer, the applicant had been over 14 years of age and had thus been entitled under Bulgarian law to perform legal acts with her mother's approval. 197. The Government also stated that the parties had agreed on the hourly rate of EUR 40 in 2003, at the final stage of the proceedings, which meant that a high and arbitrary fee had been fixed. In “other circumstances”, the applicant would not have agreed to pay such amounts. 198. According to the Court's established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002 ). 199. The Government have not disputed the fact that the applicant's lawyer had carried out legal work in her case, after being given a power of attorney dated 27 November 1997 signed by the applicant and her mother, at a time when the applicant had not yet reached the age of majority (see paragraphs 2 and 9 above). It has not been alleged that the applicant disputes the costs her lawyer has charged her or that the amounts claimed are unrelated to the violation found in the present case. In these circumstances, there is no doubt that the legal costs claimed were actually and necessarily incurred. 200. The Government have not objected to the number of hours of legal work claimed. The Court further considers that the hourly rate of EUR 40 is not excessive. Accordingly, deducting EUR 630 received in legal aid from the Council of Europe, it awards EUR 4,110 in respect of costs. C. Default interest 201. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court found a violation of Article 3 (prohibition of degrading treatment) and Article 8 (right to respect for private life) of the Convention, noting in particular the universal trend towards recognising lack of consent as the essential element in determining rape and sexual abuse. Victims of sexual abuse, especially young girls, often failed to resist for psychological reasons (either submitting passively or dissociating themselves from the rape) or for fear of further violence. Stressing that States had an obligation to prosecute any non-consensual sexual act, even where the victim had not resisted physically, the Court found both the investigation in the case and Bulgaria law to be defective. |
748 | Freedom of expression / Freedom to receive and impart information (Article 10 of the Convention) | RELEVANT LEGAL FRAMEWORK 34. The relevant provisions of Law no. 60/1991 on the organisation and conduct of public gatherings, as in force at the relevant time, read as follows: Article 1 “... Public gatherings – meetings, demonstrations, manifestations ... and other similar [events] – which are to take place in squares, on public thoroughfares or in other outdoor places, may be organised only after submitting the preliminary declaration provided for by the present law. ...” Article 2 “Public gatherings must take place in a peaceful and civilised manner, with the protection of the participants and of the environment, without disrupting the normal use of public roads ..., except for those authorised, the functioning of public institutions ... or degenerating into turbulent actions capable of endangering the public peace and order, the safety of persons, ... or their property or those of the public domain, and may not be continued past 11 p.m., in which case they are covered by the provisions of Law no. 61/1991 ...” Article 7 “The organisers of public gatherings shall submit, at least three days before the date on which they will be held, a written declaration to the mayor’s office ... on whose territory they will be held, in which they must mention the name of the organising group, the purpose, location, date, start time and duration of the action, the inflow and outflow routes, the estimated number of participants, the persons authorised to ensure and be responsible for organising measures, the services they require from the local council, the local police and the gendarmerie ...” Article 13 “The participants in public gatherings must: ... (d) immediately leave the public gatherings or the location where they are held, when they have been asked [to do so] by the ... police.” Article 26 “The following acts are contraventions, unless they are committed in circumstances that meet the elements of an offence according to criminal law: (a) organising and holding... unregistered and undeclared public gatherings; ... (d) participating in undeclared ... public gatherings, followed by a refusal to leave the location where they were held when warned and asked [to do so] according to law by the law-enforcement officials ... (i) refusing to leave the gathering immediately when asked [to do so] by law ‑ enforcement officials according to law; ...” 35. The relevant provisions of Law no. 61/1991 on the punishment of acts breaching certain norms of social coexistence and the public order and peace, as in force at the relevant time, read as follows: Article 3 “Committing any of the following acts amounts to a contravention, unless they are committed in circumstances constituting an offence according to criminal law: ... 2. forming a group of three or more people in order to commit unlawful acts contrary to the public order and peace and to the norms of social coexistence, as well as the acts of encouragement and support, in any form, of such groups of persons which incite to social disorder; ...” Article 4 “1. The contraventions set out in Article 3 shall be punished as follows: ... (c) with a fine from 500 lei to 1,500 lei, those set out in paragraph 2 ...; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION 36. The applicant complained that the final judgment of 10 June 2015 of the Bucharest County Court, upholding the sanction imposed on him, had violated his rights to freedom of expression and peaceful assembly provided for by Articles 10 and 11 of the Convention, the relevant parts of which read as follows: Article 10 “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others ...” Article 11 “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others ... 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others ...” AdmissibilityThe parties’ submissions The parties’ submissions The parties’ submissions (a) The Government 37. The Government argued that in view of the Court’s case-law, namely Kudrevičius and Others v. Lithuania ([GC], no. 37553/05, § 85, ECHR 2015), the applicant’s case should only be examined from the angle of Article 11 of the Convention, which was lex specialis in relation to Article 10. They indicated, however, that their submissions concerning Article 11 also applied to Article 10. 38. They argued further that according to the police report and the judgment of the national courts, the applicant had been punished because he had committed acts affecting the public order owing to the manner in which he had chosen to protest, in particular by handcuffing himself to the barrier of the access gate to the government building. He had not been punished because of his participation in the protest, because of the personal opinions expressed or the content of the slogans chanted on that occasion, or because he had failed to give the requisite prior notice for the assembly. 39. Therefore Article 11, which conferred on the applicant a right to peaceful assembly, was not applicable in the present case. (b) The applicant 40. The applicant disagreed with the Government’s assertions to the effect that neither Article 10 nor Article 11 was applicable in his case. The Government had failed to explain why Article 10 was inapplicable and the applicant expressed the view that his case could be considered under both Articles. 41. His case was similar to that in Tatár and Fáber v. Hungary (nos. 26005/08 and 26160/08, 12 June 2012) and therefore the Court had to declare admissible his complaint under Article 10 of the Convention. He had been sanctioned for a disturbance that had been the result of the applicant and a few others expressing their opinion in a provocative, but peaceful manner. The event had been very short, had not been aimed at any particular group of people and, since it had not been advertised beforehand, it had not been designed to attract a large crowd, which would have warranted specific measures by the authorities. The aim had only been to raise public support. 42. As to the Government’s arguments that Article 11 of the Convention was inapplicable because the gathering had not been peaceful (see paragraph 40 above), the applicant argued that the event had not been violent and that he had remained passive and silent throughout, even when he was detached from the barrier. The Court’s assessment 43. The Court notes that the exact circumstances which led to the applicant being fined, including the exact timeline of his actions on 27 and 28 August 2013, remain to some extent unclear (see paragraphs 7-14, 15-16, 24 and 30). The national authorities and the courts did not address and clarify this point. 44. Nevertheless, the Court notes that in making his complaints under Articles 10 and 11 of the Convention, the applicant has presented his own version of the events as well as written and video evidence to support it which has not been contested as such by the Government (see paragraphs 7-15 and 41-42 above, and 53-58 below). The Court notes further that the applicant’s version of the events seems to be largely coherent with the evidence submitted by him, the findings of the national courts and the police report (see paragraphs 15, 21-24 and 30-32 above). Therefore, it finds it reasonable to accept the applicant’s version of the events. 45. The Court notes that the applicant has not denied at any stage of the domestic proceedings or before the Court that he had intended to organise and take part in the event on 28 August 2013 together with three other people. Moreover, it is clear that both the event itself and the signs the applicant and the other persons were holding up were designed and aimed to send a message directed both at the government in power and at the public at large (see paragraph 56 below). Furthermore, when giving their reasons for the sanction imposed on the applicant, the law-enforcement authorities referred expressly to the message held up by the participants in the event (see paragraph 15 above). 46. In these circumstances the Court cannot accept that the penalty imposed on the applicant could be dissociated from the views expressed by him through his actions or endorse the Government’s argument that the applicant was punished merely for committing acts affecting public order (see paragraph 38 above). In this connection, the Court notes that it has consistently found Article 10 to be applicable to views or opinions expressed through conduct (see Mătăsaru v. the Republic of Moldova, nos. 69714/16 and 71685/16, § 29, 15 January 2019, with further references). 47. In so far as the Government’s arguments may be understood to suggest that Article 11, or Article 10 for that matter, was inapplicable because the gathering had not been peaceful (see paragraphs 40 and 42 above), the Court notes that the applicant’s conduct, although involving handcuffing himself to a barrier and some damage being done to the rails of that barrier (see paragraph 11 above), did not amount to violence or incite it, and no one was injured during the event in which he was involved (see Olga Kudrina v. Russia, no. 34313/06, §§ 53-54, 6 April 2021, with further references). Indeed, neither the police report produced on 28 August 2013 nor the judgments of the national courts expressly mentioned any use or threat of violence by the applicant against individuals or infliction of any bodily harm to anyone. In addition, the damage to the barrier’s rails was done by one of the law-enforcement officials when trying to remove the applicant and not by the applicant himself (see paragraph 11 above) and there is no indication that the national authorities or the courts held the applicant liable for the above-mentioned damage. The Government have not submitted any evidence that charges for physical violence or for damaging public property were brought against the applicant or the other participants. 48. The Court is of the opinion therefore that the facts of the applicant’s case fall within the scope of Articles 10 and 11 of the Convention. It follows that the Government’s objection concerning the applicability of these Articles must be dismissed. 49. The Court further notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 50. The applicant argued that he had relied on both Articles 10 and 11 in his applications before the national courts and the Court because of the specific circumstances of the case which had resulted from the national courts’ approach when examining it. Both courts had indicated that the unlawful act in which the applicant had conspired with others had been that of participating in a gathering that had been unlawful because it had not complied with the prior-notification requirement set out by law. The District Court had specifically held that even spontaneous protests such as the one the applicant had been involved in had to comply with the prior-notification requirement (see paragraph 22 above). That court had referred only very briefly in its assessment to the form of protest chosen by the applicant and only when considering the proportionality of the sanction imposed on him (see paragraph 23 above). 51. The applicant explained that on 28 August 2013 he had intended to respond quickly and express his disagreement with the government’s initiative. He had opted for a more provocative manner of showing his dissatisfaction and for drawing the public’s attention to this matter because the various other forms of protest that had been used before 28 August 2013 had not yielded results. The fact that the protest had been filmed and that the film had been disseminated online (see paragraph 9 above) proved that he had intended only to show his dissatisfaction with the initiative in question and to draw the public’s attention to it. His protest had been followed by large demonstrations later that year against the Roșia Montană mining project which had eventually led to the project being cancelled (see paragraph 33 above). 52. The applicant argued that the sanction imposed on him had been an interference with his rights to freedom of expression or to freedom of assembly which, given the circumstances of his protest, had been unnecessary in a democratic society. It was therefore unnecessary for him to elaborate on the foreseeability of the law providing for his punishment. 53. The applicant acknowledged that the measure had pursued the legitimate aim of protecting public order. However, he could not agree that the measure had been aimed at preventing the disturbance of a public institution’s activity. The film of the events and the judgment of the courts had clearly shown that the activity of the institution had not been disturbed at all. The gate used for the protest had been far away from the building and no one had attempted to use it during the protest. The protest had been silent and none of the participants had engaged in any other action that could have disturbed the activity of the building’s occupants. 54. The event had been of a very short duration and had not led to the destruction of public property. The pedestrian traffic in the area had not been affected, the members of the public passing by had not gathered to watch what had been happening and there had been no public outrage about the protest or any serious intentional disruption of public activities. Also, imposing a requisite three days’ prior notice even for spontaneous protests and the authorities’ failure to demonstrate a high degree of tolerance to his protest, given that he had been removed from the barrier and taken to a police station almost immediately, ran counter to the European Court of Human Rights’ case-law on Article 11 of the Convention. Therefore, there had been no pressing social need for the authorities to punish the applicant. 55. The national courts had not provided relevant and sufficient reasons explaining the interference with his rights protected under Article 10 or Article 11. They had ignored the arguments he had raised in this connection and had simply considered that the interference had been justified because he had chosen to protest without complying with the relevant legal framework requiring a prior notification of the protest. (b) The Government 56. Reiterating their above-mentioned arguments (see paragraph 38 above), the Government argued that the measure imposed on the applicant had not constituted an interference with his right to freedom of peaceful assembly. 57. Even assuming that there had been an interference with the applicant’s right, the interference in question had been prescribed by law. Moreover, by seeking to prevent the disruption of the activities within the government building, it had pursued the legitimate aims of preventing disorder and of protecting the rights and freedoms of others. Furthermore, it had been necessary in a democratic society. 58. The domestic authorities had not prevented the applicant from taking part in the event in question and had punished him by imposing only the minimum fine provided for by law. In their assessment of the case the courts had struck a fair balance between the competing interests at stake. They had duly examined the applicant’s challenge against the police report and his arguments and had found that his actions had violated the legal framework protecting public order by relying on relevant and sufficient reasons. (c) The third-party interveners 59. In their joint intervention, The Open Society Justice Initiative and Greenpeace Romania submitted that the applicant’s case provided the Court with an opportunity to acknowledge that obstructive or symbolic protests, sometimes referred to as non-violent direct action, constituted an important form of communication in a democratic society protected by Article 10 and should not be subject to notification requirements. In the alternative, in the event that the Court should take the view that the applicant’s conduct had to be examined as a peaceful assembly protected by Article 11, it could acknowledge that any notification requirements for assemblies should provide exceptions for special circumstances that justified an immediate response, and that one such circumstance was the recent adoption without prior consultation of legislation affecting a community. 60. As could be seen from the Court’s case-law and the views expressed by the Council of Europe’s Venice Commission, the key issues for the Court to consider when deciding whether the applicant’s conduct was an expression within the meaning of Article 10 or a peaceful assembly within the meaning of Article 11 were whether: (i) the conduct involved an intentional gathering of further participants; (ii) facilitation of the event by the authorities could objectively have been considered necessary, and failure to give prior notice had prevented them from doing so; and (iii) a requirement for prior notice would have interfered with the intended form of the protest, given that the protest involved an element of confrontation or surprise or was an immediate response to a current event. 61. The third-party interveners took the view that since in the applicant’s case the first two questions could be answered in the negative and the third one in the positive, his protest had to be examined under Article 10 read in the light of Article 11, rather than Article 11 alone. The Court’s assessment (a) General principles 62. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Jersild v. Denmark, 23 September 1994, § 37, Series A no. 298). 63. Moreover, Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204; Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001 ‑ III; and Women On Waves and Others v. Portugal, no. 31276/05, § 30, 3 February 2009). 64. Similarly, the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Thus, it should not be interpreted restrictively (see Djavit An v. Turkey, no. 20652/92, § 56, ECHR 2003 ‑ III, and Barraco v. France, no. 31684/05, § 41, 5 March 2009). A balance must always be struck between the legitimate aims listed in Article 11 § 2 and the right to free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places (see Ezelin v. France, 26 April 1991, § 52, Series A no. 202). 65. However, Article 11 of the Convention only protects the right to “peaceful assembly”. That notion does not cover a demonstration where the organisers and participants have violent intentions (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 77, ECHR 2001 ‑ IX, and Galstyan v. Armenia, no. 26986/03, § 101, 15 November 2007). Nonetheless, even if there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, such a demonstration does not fall outside the scope of Article 11 § 1, but any restriction placed on such an assembly must be in conformity with the terms of paragraph 2 of that Article (see Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 103, ECHR 2011 (extracts)). 66. Lastly, the Court reiterates that any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles do a disservice to democracy and often even endanger it (see Fáber v. Hungary, no. 40721/08, § 37, 24 July 2012). (b) Application of these principles to the instant case (i) Scope of the Court’s assessment 67. The Court notes that the issues of freedom of expression and freedom of peaceful assembly are closely linked in the present case. Indeed, the protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention (see Taranenko v. Russia, no. 19554/05, § 68, 15 May 2014, with further references). 68. The parties and the third-party interveners have submitted arguments under both Article 10 and Article 11 and have laid out various options the Court could choose in respect of its assessment of the case in terms of the Article most relevant in this connection (see paragraphs 37, 40, 50, 59 and 61 above). 69. Given the detailed explanations provided by the applicant as to the intended purpose and scope of the event he had staged and participated in (see paragraphs 51 and 54 above), the Court considers that the thrust of his complaint is that he was punished for protesting, together with other participants in the non-violent direct action, against the government’s policies. The Court is therefore persuaded that the event constituted predominantly an expression, all the more so since it involved only four persons and lasted a very short time (see paragraph 10 above and, mutatis mutandis, Tatár and Fáber, cited above, § 29). Moreover, since it was the result of a rather spontaneous decision (see paragraphs 7 and 30 above) and lacked any prior advertisement, it is difficult to conceive that such an event could have generated the presence of further participants or the gathering of a significant crowd warranting specific measures on the part of the authorities (ibid.). 70. The Court therefore finds it appropriate to examine the present case under Article 10, which will nevertheless be interpreted in the light of Article 11 (see Women On Waves and Others, cited above, § 28, and Taranenko, cited above, § 69). (ii) Existence of an interference 71. The Court notes that the parties disagree as to whether the measure taken against the applicant constituted an interference with his right to freedom of expression (see paragraphs 52 and 56 above). 72. The Court has established that the measure in question could not be construed to have concerned only the applicant’s conduct as such and not also the views and message expressed by him through his actions (see paragraph 51 above). It follows that there has been an interference with his right to freedom of expression (see Tatár and Fáber, cited above, § 30). 73. Such an interference will lead to the finding of a violation of Article 10 of the Convention, unless it was prescribed by law, pursued a legitimate aim and was necessary in a democratic society to achieve that aim (ibid.). (iii) Prescribed by law 74. The Court notes that while the Government argued that the interference with the applicant’s right had been lawful, the applicant considered that the interference was not necessary in a democratic society which made it unnecessary for him to elaborate on the foreseeability of the law providing for his punishment, suggesting that he viewed the interference with his right to be unlawful (see paragraphs 52 and 57 above). 75. The relevant principles for the assessment of the lawfulness of an interference, including the requirements of accessibility and foreseeability of the law are set out in Kudrevičius and Others (cited above, §§ 108-110). 76. The Court notes that the legal basis for the fine imposed on the applicant was Article 3 § 2 of Law no. 61/1991 read in the light of Article 26 § 1 (a) of Law no. 60/1991 (see paragraphs 15 and 30 above). 77. However, the reference to this provision for the sanction, namely Article 3 § 2 of Law no. 61/1991, was contested by the applicant before the national courts on the grounds that the legal basis for his punishment should have been Law no. 60/1991. For the reasons emphasised by him in paragraphs 17-19 above, the applicant contested that he had formed a group of three or more people in order to commit unlawful acts, violating the public peace and order and the norms of social coexistence as required by Law no. 61/1991. He also argued before the courts that at the scene of the protest the law-enforcement officials had relied on the procedure under Law no. 60/1991 and had not referred to Law no. 61/1991 at all. Given that his actions could be viewed as constituting organisation and participation in a public gathering which had lacked the requisite prior notification, his punishment would have been lawful only if he had been punished on the basis of Article 26 of Law no. 60/1991 (see paragraph 26 above). 78. The national courts dismissed the applicant’s above-mentioned arguments on the grounds that the legal classification of his actions under Article 3 § 2 of Law no. 61/1991 had been justified because the form of protest chosen by the applicant had breached Law no. 60/1991, therefore amounting to an unlawful act, and his having handcuffed himself to the barrier and the expression made could be considered to be acts that had breached the public peace and order and the norms of social coexistence. The applicant had not given reasons that could have justified holding this form of protest without following the preliminary procedure provided for by Law no. 60/1991 of declaring public gatherings to the authorities, and it could not be said that the rules set out in Law no. 60/1991 had not covered spontaneous forms of protest since it required that a prior declaration be made about any type of public gathering. There could be no doubt that the agreement to meet with three other persons in a certain location and at a certain time with the aim of conducting an unauthorised meeting met the conditions of the contravention provided for by Article 3 § 2 of Law no. 61/1991 read in the light of Article 26 § 1 (a) of Law no. 60/1991. Also, the argument that the authorities should have relied on Law no. 60/1991 rather than Law no. 61/1991 to impose the sanction was ill-founded because the two laws were complimentary and not mutually exclusive. To accept the applicant’s view would have meant that the instances of disturbing the public order and peace which had not been covered by Law no. 60/1991 would have gone unpunished. Given the content of the applicable legal framework which required a written notification at least three days prior to the date of the protest, the measure taken against the applicant had not violated his right to freedom of expression (see paragraphs 21-24 and 30-32 above). 79. The Court reiterates that its power to review compliance with domestic law is limited, as it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, Kudrevičius and Others, cited above, § 110, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 144, 27 June 2017). Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (see Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16, § 108, 26 March 2020, with further references). 80. The Court notes that nothing in the language of Laws nos. 60/1991 and 61/1991 (see paragraphs 34-35 above) would lead it to believe that the national courts’ assessment to the effect that the provisions of those two laws are complementary and not mutually exclusive was arbitrary or manifestly unreasonable (see paragraph 78 above). Moreover, the parties have not put forward any evidence to suggest that the above-mentioned conclusion by the courts goes against established legal practice. Therefore, the Court is prepared to accept that the two laws in question were complementary and could be read in conjunction. 81. As indicated also by the national courts’ assessment, the Court notes further that a joint reading of Laws nos. 60/1991 and 61/1991 suggests that any public gathering – no matter how small or short, irrespective of its nature, namely assembly or expression, and regardless of its potential to cause disruption to ordinary life – could be declared unlawful unless a declaration had been submitted to the authorities no later than three days before the event. Regardless of whether it was coupled with other acts that could also be viewed as amounting to breaches of the public peace and order and the norms of social coexistence, this transgression on its own gave rise to a possibility for the authorities to impose a sanction for such an event. 82. Thus, the regulatory framework in dispute provided for a broad interpretation of what constituted an event subject to prior notification and gave the authorities a rather wide discretion in imposing restrictions on such events, in the absence of the above-mentioned notification. 83. The Court notes also that, as suggested by the Government (see paragraphs 38 and 56 above) and the conclusions of the police report (see paragraph 15 above), aside from the matter of the existence or absence of a prior notification, the conduct chosen by the applicant and the other participants to disseminate their message, namely handcuffing themselves to a car park barrier, taken on its own, could have been viewed as amounting to an unlawful act contrary to the public order and peace and to the norms of social coexistence, therefore giving rise to the possibility of the sanction being imposed on him. 84. In the light of the above, the Court is prepared to accept that the relevant domestic legal framework as applied in the applicant’s case to impose the sanction on him was formulated sufficiently clearly in order to fulfil the requirement of foreseeability under Article 10 § 2 of the Convention. 85. Therefore, the Court considers that the interference with the applicant’s right was “prescribed by law”. (iv) Legitimate aim 86. The Court notes that the parties agreed either explicitly or implicitly that the sanction in question was aimed at protecting public order and the rights and freedoms of others (see paragraphs 53 and 57 above), even though the applicant seemed to indicate that his agreement depended on whether the aims in question could be read to imply that the authorities were seeking to prevent the disturbance of the activity of the public institution in question (see paragraph 53 above). 87. The Court can accept that the sanction imposed on the applicant for organising or participating in the protest in question, for which no prior declaration had been made, could be aimed at the prevention of disorder and at the protection of the rights and freedoms of others (see, mutatis mutandis, Tatár and Fáber, cited above, § 32, and Novikova and Others v. Russia, nos. 25501/07 and 4 others, § 147, 26 April 2016). 88. Therefore, it will proceed on the assumption that the measure against the applicant pursued the legitimate aims cited by the Government. (v) Necessary in a democratic society 89. The Court reiterates that the test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among other authorities, Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII, and Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V). 90. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their margin of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; the Court looks at the interference complained of in the light of the case as a whole, including the content of the statement held against the applicant and its context (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52, ECHR 2000-I). 91. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient”, and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Zana v. Turkey, 25 November 1997, § 51, Reports of Judgments and Decisions 1997-VII). 92. In the applicant’s case, the Court has established that he and the other participants in the event wished to draw the attention of their fellow citizens and public officials to their disapproval of the government’s policies concerning the Roșia Montană mining project (see paragraphs 45 and 69 above). This was a topic of public interest and contributed to the ongoing debate in society about the impact of this project and the exercise of governmental and political powers green-lighting it. The Court reiterates in this connection that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or debates on questions of public interest. It has been the Court’s consistent approach to require very strong reasons for justifying restrictions on political debate, for broad restrictions imposed in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV, and Feldek v. Slovakia, no. 29032/95, § 83, ECHR 2001 ‑ VIII). 93. The Court notes in this regard that the protest action took place in a square freely open to the public (see paragraph 15 above). The event was terminated swiftly by the law-enforcement officials and the applicant and the other participants were taken to a police station and fined after having been given hardly any time to express their views (see paragraphs 9-15 and 44 above). The domestic courts seem to have dealt with the situation arising from the applicant’s protest as a matter falling primarily within the ambit of the regulations concerning public events requiring prior notification and the exercise of one’s right to freedom of peaceful assembly (see paragraphs 21 ‑ 24 and 30-32 above). Therefore, the Court finds it particularly pertinent at this junction to refer to the principles that it has established in the context of Article 11 of the Convention. 94. It reiterates that while rules governing public assemblies, such as the system of prior notification, may be essential for the smooth conduct of public demonstrations, in so far as they allow the authorities to minimise the disruption to traffic and take other safety measures, their enforcement cannot become an end in itself (see Novikova and Others, cited above, § 163, with further references). The Court reiterates its constant position that a situation of unlawfulness, such as one arising under Romanian law from the staging of a demonstration without prior notification, does not necessarily (that is, by itself) justify an interference with a person’s right to freedom of assembly (see Kudrevičius and Others, cited above, § 150). In other words, the absence of prior notification and the ensuing “unlawfulness” of the event, which the authorities consider to be an assembly, do not give carte blanche to the authorities; the domestic authorities’ reaction to a public event remains restricted by the proportionality and necessity requirements of Article 11 of the Convention (see Primov and Others v. Russia, no. 17391/06, § 119, 12 June 2014, and Novikova and Others, cited above, § 163). 95. Where demonstrators do not engage in acts of violence it is important for the public authorities to show a degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (see Oya Ataman v. Turkey, no. 74552/01, § 42, ECHR 2006 ‑ XIV). The appropriate “degree of tolerance” cannot be defined in abstracto : the Court must look at the particular circumstances of the case and particularly the extent of the “disruption of ordinary life” since it is understood that any large-scale gathering in a public place inevitably creates inconvenience for the population or some disruption to ordinary life (see Primov and Others, cited above, § 145, and Novikova and Others, cited above, § 165). The actual degree of such tolerance and its specific manifestations vary on account of the particular circumstances of each case, for instance where dispersal of the event is envisaged with recourse to physical force (see Primov and Others, cited above, §§ 156-63, and Novikova and Others, cited above, § 166) or where it concerns an event which was not notified in advance to the authorities but (i) was an urgent reaction to an ongoing political event (see Bukta and Others, cited above, §§ 36-38, and Novikova and Others, cited above, § 166) or (ii) was a purely obstructive protest action which because of its very nature it is doubtful, in principle and as a practical matter, that it could be subjected to prior-notification requirements (see Chernega and Others v. Ukraine, no. 74768/10, § 239, 18 June 2019). 96. The Court stresses that it remains in the first place within the purview of the national authorities’ discretion, having direct contact with those involved, to determine how to react to a public event (see Novikova and Others, cited above, § 169). Nevertheless, given the relevance of the principles summarised above (see paragraphs 94-95) for the present case, the Court considers that its task when dealing with the applicant’s complaint under Article 10 of the Convention as described in paragraph 91 above is to assess whether the decisions taken by the authorities in relation to his protest duly considered the extent of the “disruption of ordinary life” caused by it (see, mutatis mutandis, Novikova and Others, cited above, § 168). 97. In this connection, the Court notes that when dismissing the applicant’s challenge against the police report and the fine imposed on him, the national courts did not assess the level of disturbance his actions had caused, if any. They merely observed that the applicant had failed to comply with the prior-declaration requirement in respect of a situation that, in their view, had doubtless required one and that his having handcuffed himself to the barrier and the expression made could be considered to be acts that had breached the public peace and order and the norms of social coexistence (see paragraphs 21-24 and 30-32 above). 98. The Court reiterates that, as acknowledged also by the national courts, the proportionality principle demands that a balance be struck between the requirements of the purposes listed in Article 11 § 2 on the one hand, and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places, on the other (see Kudrevičius and Others, cited above, § 144). Nevertheless, the Court notes that the national courts did not seek to strike this balance giving the preponderant weight to the formal unlawfulness of the event in question (see Obote v. Russia, no. 58954/09, § 43, 19 November 2019). 99. The Court notes that as far as the national courts’ assertion of a prior notification of the event staged by the applicant being required is concerned, it was not accompanied by any apparent consideration of the fact whether, given the number of participants, such a notification would have served the purpose of enabling the authorities to take necessary measures such as those described in paragraph 94 above in order to guarantee the smooth conduct of the event (see, mutatis mutandis, Novikova and Others, cited above, § 171). It further notes that the application of that rule to expressions (see paragraph 69 above) – rather than only to assemblies – would create a prior restraint which is incompatible with the free communication of ideas and might undermine freedom of expression (see Tatár and Fáber, cited above, § 40). 100. The authorities’ impugned actions disregarded the emphasis repeatedly placed by the Court on the fact that the enforcement of rules governing public assemblies should not become an end in itself (see the case-law cited in paragraphs 94 above; and also Kudrevičius and Others, cited above, § 155; and Obote, cited above, § 42). 101. The Court notes, finally, as pointed out also by the national courts, that the fine imposed on the applicant for taking part in the event in question was the minimum statutory amount envisaged for the impugned contravention and the applicant did not argue or submit evidence that paying the fine was beyond his financial means. Nevertheless, it reiterates that the imposition of a sanction, administrative or otherwise, however lenient, on the author of an expression which qualifies as political (see paragraph 92 above) can have an undesirable chilling effect on public speech (see, mutatis mutandis, Tatár and Fáber, cited above, § 41). 102. In the light of the above, the Court considers that the decision to restrict the applicant’s freedom of expression was not supported by reasons which were relevant and sufficient for the purposes of the test of “necessity” under Article 10 § 2 of the Convention. The interference was thus not necessary in a democratic society within the meaning of Article 10 of the Convention. There has accordingly been a violation of that Article interpreted in the light of Article 11. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 103. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 104. The applicant claimed 113 euros (EUR) in respect of pecuniary damage corresponding to the amount of the fine imposed on him by the authorities. He submitted copies of a receipt attesting to the payment of the amount claimed. 105. The applicant also claimed EUR 5,000 in respect of non-pecuniary damage for the violation of his rights by the national authorities. 106. The Government argued that the applicant was not entitled to an award in respect of pecuniary damage given the reasons provided by the national authorities for their actions. 107. As to the applicant’s claim in respect of non-pecuniary damage, the Government argued that it was excessive and that the possible finding of a violation would constitute sufficient just satisfaction in his case. 108. The Court notes that there is a clear link between the fine imposed on him by the national authorities and the amount paid by him. The Court therefore grants the applicant EUR 113, plus any tax that may be chargeable, in respect of pecuniary damage. 109. As regards the applicant’s claim in respect of non-pecuniary damage, the Court considers that a mere finding of a violation by the Court is insufficient to compensate the applicant for the sense of injustice and frustration which he must have felt on account of the sanction imposed on him. Making its assessment on an equitable basis, the Court therefore awards the applicant EUR 5,000, plus any tax that may be chargeable, in respect of non-pecuniary damage. Costs and expenses 110. The applicant also claimed EUR 1,872 in respect of the costs and expenses incurred for his legal representation before the Court, to be paid directly to his representative. He submitted an agreement signed by him with his lawyer as regards the hourly rate charged by the lawyer, and a breakdown of the number of hours worked by the lawyer on the case, totalling EUR 1,872. 111. The Government argued that the Court should grant the applicant only an amount which corresponded to his actual expenses which had been proven and necessarily incurred. 112. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the amount claimed by the applicant for costs and expenses, the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,872 in respect of his lawyer’s fees, plus any tax that may be chargeable to the applicant. This sum is to be paid directly into the bank account of the applicant’s representative (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016). Default interest 113. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) interpreted in the light of Article 11 (freedom of assembly and association) of the Convention, finding that the interference with the applicant’s right to freedom of expression had not been “necessary in a democratic society”. It noted, in particular, that the domestic courts had not focussed on the issue of public speech on a matter of public interest and had not duly considered the extent of the “disruption of ordinary life” caused by the protest, instead looking primarily at the lack of prior notification of the protest. The resulting fine had also had a chilling effect on such speech. |
483 | Obligation imposed solely on men to serve in the fire brigade or pay a financial contribution in lieu | II. RELEVANT DOMESTIC LAW 12. The Baden -Württemberg Fire Brigades Act dates from 1 April 1956; it has been amended on several occasions, most recently on 10 February 1987. At the time of the events in the present case the Act was applicable as amended on 27 November 1978. 13. The Act requires municipalities to set up proficient fire brigades which may be composed of volunteers or professionals (sections 4 para. 1 and 8 para. 1). Their role is to deal with, among other things, fires, natural disasters and collapsed buildings, but they may also be required to ensure safety in theatres, at meetings and exhibitions and also at markets (section 2 paras. 1 and 2). All the male residents of the municipality between the ages of 18 and 50 inclusive may be required to serve as firemen, unless they can show that they are unfit to do so on health grounds (section 13 para. 1). If there are insufficient volunteers, the municipalities may call upon these residents to serve (section 13 para. 2), but so far this has never occurred in Baden-Württemberg. As the Act does not recognise a right to active service, the municipalities may refuse to accept a volunteer (section 12 para. 3). 14. The municipalities may adopt decrees making provision for a fire service levy of up to 200 DM; the resulting funds may only be used to meet the needs of the fire brigade (section 43 paras. 1 and 4). Anyone who is liable for fire service duty (section 13) and who resides in the municipality at the beginning of the budget year, may be required to pay this levy (section 43 para. 2). Certain persons are, however, exempted, such as the members of the municipal fire brigade (section 43 para. 3). 15. The system operated in Baden-Württemberg was challenged upon the entry into force of the Act on 1 April 1956. On 17 October 1961 the Federal Constitutional Court ruled that the fire service levy was compatible with the Basic Law and in particular with the general principle of equality before the law in so far as it constituted a "compensatory charge" ( Ausgleichsabgabe ) deriving directly from the obligation to serve. 16. In thirteen of the sixteen Länder of the Federal Republic of Germany - including Baden-Württemberg -, the residents of municipalities are required by law to perform active service in the fire brigade if there are insufficient volunteers. Nine Länder make provision for such service solely for male residents. In addition to Baden-Württemberg, residents are required to pay a contribution to the fire brigade or to the fire protection department in Bavaria, Saxony and Thüringen. Where service is compulsory for residents of both sexes, both men and women are liable to pay the contribution. 17. Moreover, according to information provided by the applicant and not contested, 68,612 women had served in fire brigades in Germany as at 31 December 1991 and in Baden-Württemberg women have been permitted to serve in fire brigades since 1978. PROCEEDINGS BEFORE THE COMMISSION 18. Mr Karlheinz Schmidt applied to the Commission on 11 August 1987. Relying on Article 14 taken in conjunction with Article 4 para. 3 (d) of the Convention and Article 1 of Protocol No. 1 (art. 14+4-3-d, art. 14+P1-1), he complained of a breach of the principle of sexual equality in so far as in the Land of Baden-Württemberg only men were subject to the obligation to serve as firemen or pay a financial contribution. 19. The Commission declared the application (no. 13580/88) admissible on 8 January 1992. In its report of 14 January 1993 (drawn up under Article 31) (art. 31), it expressed the opinion, by fourteen votes to three, that there had been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 and with Article 4 para. 3 (d) (art. 14+P1-1, art. 14+4-3-d) of the Convention. The full text of its opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT 20. In their memorial the Government requested the Court to hold "that there has been no violation of the applicant ’ s rights under Article 14 taken in conjunction with Article 4 para. 3 (d) of the Convention and with Article 1 of Protocol No. 1 (art. 14+4-3-d, art. 14+P1-1)". AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 PARA. 3 (d) (art. 14+4-3-d) 21. Mr Karlheinz Schmidt complained that he was required to pay a fire service levy under an Act of the Land of Baden-Württemberg, which made it compulsory for men, but not women, to serve in the fire brigade or pay a financial contribution in lieu of such service (see paragraphs 12-14 above). He claimed to be the victim of discrimination on the ground of sex in breach of Article 14 taken in conjunction with Article 4 para. 3 (d) (art. 14+4-3-d) of the Convention, which provisions state as follows: Article 14 (art. 14) "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, ..." Article 4 (art. 4) "1. ... 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article (art. 4) the term ‘ forced or compulsory labour ’ shall not include: ... (d) any work or service which forms part of normal civic obligations." A. Applicability 22. As the Court has consistently held, Article 14 (art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 (art. 14) does not presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, in particular, the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 35, para. 71, and the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, para. 36). The Court reiterates that paragraph 3 of Article 4 (art. 4-3) is not intended to "limit" the exercise of the right guaranteed by paragraph 2 (art. 4-2), but to "delimit" the very content of that right, for it forms a whole with paragraph 2 and indicates what "the term ‘ forced or compulsory labour ’ shall not include" ( ce qui" n ’ est pas considéré comme ‘ travail forcé ou obligatoire ’ "). This being so, paragraph 3 (art. 4-3) serves as an aid to the interpretation of paragraph 2 (art. 4-2). The four subparagraphs of paragraph 3 (art. 4-3), notwithstanding their diversity, are grounded on the governing ideas of the general interest, social solidarity and what is normal in the ordinary course of affairs (see the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 19, para. 38). 23. Like the participants in the proceedings, the Court considers that compulsory fire service such as exists in Baden-Württemberg is one of the "normal civic obligations" envisaged in Article 4 para. 3 (d) (art. 4-3-d). It observes further that the financial contribution which is payable - in lieu of service - is, according to the Federal Constitutional Court (see paragraph 15 above), a "compensatory charge". The Court therefore concludes that, on account of its close links with the obligation to serve, the obligation to pay also falls within the scope of Article 4 para. 3 (d) (art. 4-3-d). It follows that Article 14 read in conjunction with Article 4 para. 3 (d) (art. 14+4-3-d) applies. B. Compliance 24. For the purposes of Article 14 (art. 14) a difference of treatment is discriminatory if it "has no objective and reasonable justification", that is if it does not pursue a "legitimate aim" or if there is not a "reasonable relationship of proportionality between the means employed and the aim sought to be realised". Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see the Abdulaziz, Cabales and Balkandali judgment, cited above, pp. 35-36, para. 72). However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of sex as compatible with the Convention (see the Schuler- Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, pp. 21-22, para. 67, and the Burghartz v. Switzerland judgment of 22 February 1994, Series A no. 280-B, p. 29, para. 27). 25. According to the applicant, the Contracting States do not enjoy any margin of appreciation as regards equality of the sexes. He argued that service in the fire brigade was comparable for men and for women and that account could be taken of the biological differences between the two sexes by a sensible division of the various tasks. The concern to protect women could not in itself justify a difference of treatment in this context. As at 31 December 1991, 68,612 women had served in fire brigades in Germany and even in Baden-Württemberg the fire brigades had accepted women since 1978. The financial contribution was of a purely fiscal nature, as in Baden-Württemberg no man had ever been called upon to serve. There was in any case discrimination since women were just as capable as men of paying the levy in question. 26. The Commission in substance accepted the applicant ’ s argument. 27. In the Government ’ s view, on the other hand, the difference of treatment is based on objective and reasonable grounds. Fire brigade duty is a traditional civic obligation in Baden-Württemberg, defined by the Federal Constitutional Court as a "genuine and potential obligation to perform a public duty". The Government maintained that, in making this duty compulsory solely for the male sex, the legislature had taken account of the specific requirements of service in the fire brigade and the physical and mental characteristics of women. The sole aim which it had pursued in this respect was the protection of women. The financial contribution was purely compensatory in nature. 28. The Court notes that some German Länder do not impose different obligations for the two sexes in this field and that even in Baden-Württemberg women are accepted for voluntary service in the fire brigade. Irrespective of whether or not there can nowadays exist any justification for treating men and women differently as regards compulsory service in the fire brigade, what is finally decisive in the present case is that the obligation to perform such service is exclusively one of law and theory. In view of the continuing existence of a sufficient number of volunteers, no male person is in practice obliged to serve in a fire brigade. The financial contribution has - not in law but in fact - lost its compensatory character and has become the only effective duty. In the imposition of a financial burden such as this, a difference of treatment on the ground of sex can hardly be justified. 29. There has accordingly been a violation of Article 14 taken in conjunction with Article 4 para. 3 (d) (art. 14+4-3-d) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1) 30. In view of the finding in paragraphs 28 and 29 above, the Court does not consider it necessary also to examine the complaint that the applicant was the victim of discrimination contrary to Article 14 (art. 14) of the Convention as regards his right to the peaceful enjoyment of his possessions, guaranteed under Article 1 of Protocol No. 1 (P1-1). III. APPLICATION OF ARTICLE 50 (art. 50) 31. Under Article 50 (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 32. The applicant sought the reimbursement of the fire service levy in respect of the years 1982 to 1984 (DM 225) and of the costs and expenses incurred before the national courts (DM 395). The Government raised no objection to this claim. The Delegate of the Commission regarded it as reasonable. 33. On the basis of the evidence available to it, the Court allows the applicant ’ s claims in their entirety. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 4 § 3 (d) (prohibition of forced labour) of the Convention. It noted in particular that some German Länder did not impose different obligations for the two sexes in this field and that even in Baden-Württemberg women were accepted for voluntary service in the fire brigade. Furthermore, irrespective of whether or not there could exist any justification for treating men and women differently as regards compulsory service in the fire brigade, what was finally decisive in the present case was that the obligation to perform such service was exclusively one of law and theory. In view of the continuing existence of a sufficient number of volunteers, no male person was in practice obliged to serve in a fire brigade. Lastly, the financial contribution had – not in law but in fact – lost its compensatory character and had become the only effective duty. In the imposition of a financial burden such as this, a difference of treatment on the ground of sex could hardly be justified. |
867 | In the context of criminal justice | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. Relevant domestic law 17. The relevant provisions of Decree No. 87-249 of 8 April 1987 on the national fingerprint database managed by the Ministry of the Interior, in the version in force at the material time, read as follows: Article 1 “Under the conditions set out in the present Decree, computer processing of finger and palm prints is authorised with an eye to facilitating the national police and gendarmerie services’ efforts to find and identify the perpetrators of serious crimes and other major offences and ensuring the prosecution, investigation and trial of cases referred to the judicial authorities.” Article 2 “Such processing shall be effected by the Central Police Directorate with the Ministry of the Interior. The facility shall be known as the ‘automated fingerprint identification system’.” Article 3 “The following items may be recorded: 1. Prints found during criminal or on-the-spot investigations, preliminary inquiries, measures ordered by a judge, inquiries or investigations seeking to establish the causes of a mysterious or suspicious disappearance as laid down in Articles 74-1 and 80-4 of the Code of Criminal Procedure, or the execution of a search warrant issued by a judicial authority; 2. Where finger and palm prints found during criminal or on-the-spot investigations, preliminary inquiries, measures ordered by a judge or the execution of a search warrant issued by a judicial authority vis-à-vis persons against whom there is serious or corroborative circumstantial evidence pointing to their likely involvement as perpetrators or accomplices in the commission of a serious crime or other major offence, or persons who have been charged in criminal proceedings and who must be identified; 3. Finger and palm prints recorded in prisons in pursuance of the Code of Criminal Procedure with a view to ascertaining the identities of detainees who are being prosecuted for serious crimes or other major offences and to detecting cases of reoffending; 4. Finger and palm prints transmitted by international police cooperation agencies or foreign police services in pursuance of international undertakings.” Article 4 “The recorded finger and palm prints shall be accompanied by the following information: 1. Family name, forenames, date and place of birth, parents and sex; 2. The agency or service which initiated the entry; 3. The date and place of establishment of the identification form; 4. The nature of the case and reference of the proceedings; 5. Police photographs; 6. In the case of prints transmitted as provided for in Article 3-4, the origin of the information and date of its recording in the computer file. Recorded fingerprints shall be accompanied by the following information: 1. The place and date of fingerprinting; 2. The agency or service carrying out the fingerprinting; 3. The date and place of establishment of the form containing the copies of the fingerprints; 4. The nature of the case and reference of the proceedings; 5. The origin of the information and the date when it was recorded in the computerised file.” Article 5 “The information recorded shall be retained for a maximum period of twenty-five years from the establishment of the identification form, unless it has been previously deleted under the conditions set out in Articles 7 and 7-1 or because the department responsible for processing has been notified of the death of the data subject or, in the case of a missing person, his or her discovery. ...” Article 7 “The processing in question shall be supervised by the public prosecutor at the Court of Appeal in whose judicial district the department responsible for processing is located. The public prosecutor may, of his or her own motion and without prejudice to the supervision conducted by the National Commission on Data Processing and Civil Liberties under the above-mentioned Law of 6 January 1978, order the deletion of information whose retention is manifestly unnecessary in the light of the purpose of the processing in question. The body responsible for managing the file shall transmit to the prosecutor and the National Commission on Data Processing and Civil Liberties an annual activity report describing, inter alia, the results of the file updating and clearance operations.” Article 7-1 “Prints collected under the conditions mentioned in Article 3, point (2) may be deleted at the request of the person concerned where their retention has become unnecessary for the purposes of the database. The public prosecutor attached to the court under whose jurisdiction the procedure giving rise to the registration was conducted shall be responsible for ordering such deletion. The deletion request must be submitted in a registered letter, with a form for acknowledgment of receipt, or by declaration to the registry, failing which it shall be inadmissible. The request shall be directly addressed to the public prosecutor holding responsibility by virtue of the provisions of the previous paragraph. It may also be sent to the public prosecutor with responsibility for the place of residence of the person concerned, who shall then transmit it to the relevant public prosecutor. The prosecutor in question shall notify the person concerned of his or her decision, by registered letter, within three months of the receipt of the request either by himself or by the public prosecutor of the place of residence of the person concerned. In the absence of a reply within this time-limit, or where the prosecutor does not order the deletion, the person in question may apply to the judge with responsibility for civil liberties and detention matters within ten days by registered letter with a form for acknowledgment of receipt, or by declaration to the registry. Having requested the public prosecutor’s written submissions, the judge with responsibility for civil liberties and detention matters shall issue a reasoned decision within two months. The decision shall be notified to the public prosecutor and, by registered letter, to the person concerned. Where the judge responsible for pre-trial detention fails to issue an order within the two-month time-limit or if the order refuses the deletion, the person in question may, within ten days, apply to the president of the Investigation Division, by registered letter with a form for acknowledgment of receipt or by declaration to the registry. The objection must be accompanied by reasons if it is to be admissible. In the case of an order prescribing deletion, the public prosecutor may also, within ten days, lodge an objection to the decision with the president of the Investigation Division. This objection shall suspend the execution of the decision. The president of the Investigation Division shall adjudicate, after having requested the prosecutor’s written submissions, by means of a reasoned order within three months. Such order shall be served on the public prosecutor and, by registered letter, to the person concerned. An appeal to the Court of Cassation against the order may be lodged only if the order fails to satisfy the formal requirements to be legally valid.” Article 8 “Only duly authorised officials of the criminal identification office of the Ministry of the Interior and of the National Gendarmerie investigation units may access the information recorded and carry out identification operations at the request of the judicial authorities or of police or gendarmerie officers.” 18. Article 55-1 of the Code of Criminal Procedure provides as follows: Article 55-1 “A senior law-enforcement officer may carry out or supervise the taking of non-intimate samples from any person able to provide information about the offence in question, or from any person against whom there exist one or more plausible reasons to suspect that he has committed or attempted to commit an offence, in order to carry out technical and scientific tests comparing them with traces or evidence obtained for the purposes of the investigation. He shall carry out or oversee the identification measures – in particular, the taking of fingerprints, palm prints or photographs - necessary for supplying and consulting information in the police databases, and adding information to them, in accordance with the regulations applicable to the database in question. Refusal by a person suspected on one or more reasonable grounds of having committed or attempted to commit an offence to allow the samples ordered by the senior law-enforcement officer to be taken as provided for in the first two paragraphs above shall be punished by a year’s imprisonment and by a fine of 15,000 euros.” B. Relevant international law 19. The relevant international material is outlined in the case of S. and Marper v. the United Kingdom [GC] (nos. 30562/04 and 30566/04, §§ 41-42 and 50-53, ECHR 2008). THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 20. The applicant complained that his right to respect for his private life had been infringed by the retention of personal data on him in the national fingerprint database. He relied on Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 21. The Government contested that argument. A. Admissibility 22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions of the parties 23. The applicant did not contest the lawfulness of the interference with his right to respect for his private life, but considered it unjustified. He first of all complained that the means used to achieve the aim of the measure were disproportionate. In his view, the provisions of Article 1 of the 1987 Decree on the aim of the measure were overly extensive in terms of scope and too vague in terms of definition. The authorities accordingly had excessive latitude, with sweeping, undifferentiated powers vis-à-vis the retention of data. He complained of a genuine risk of abuse on account of misconduct extending to other databases as well. 24. Furthermore, the applicant argued that the period of retention had been set arbitrarily and was effectively not subject to a time-limit. In his view, the twenty-five-year time-limit in fact corresponded not to a maximum period but to a standard length of time, as attested by the summary rejection of his appeal before the domestic courts. There were no regulations on the reasons to be given for refusing to delete the data, which meant that such refusal could reflect prejudice against the person making the request, as in the applicant’s own case. 25. The applicant also criticised the lack of effective procedural safeguards, submitting that not only could the judges cast doubt on the res judicata principle in criminal matters in order to refuse deletion, as in his own case, but also, the very existence of the data in the database called into question the presumption of innocence ipso facto. 26. The Government did not contest the fact that the retention of the data concerning the applicant in the national fingerprint database (“the FAED”) constituted interference with his right to respect for his private life. 27. However, they submitted, firstly, that it had been in accordance with the law, namely with Article 55-1 of the Code of Criminal Procedure and Decree no. 87-249 of 8 April 1987 as amended, and secondly, that it pursued the legitimate aim of preventing public disorder, since it was geared to identifying and prosecuting the perpetrators of criminal offences. 28. The Government also submitted that the interference had been necessary in a democratic society. While reiterating that the Court’s case-law did not prohibit the collection and retention of personal data by States as long as there were appropriate and sufficient guarantees, they stressed three points: States had some discretionary powers in this field, and these powers should be reinforced in the case of straightforward fingerprints; the FAED was a major contribution to the success of investigations into and detection of identity theft; and the management of the FAED was surrounded by extensive safeguards. Where these safeguards were concerned, the Government specified that the data registered were exhaustively listed and that the database could only be consulted on the basis of print comparisons (not with reference to a name or address). Moreover, only authorised police and gendarmerie officers could consult it. Data processing was placed under the supervision of both the public prosecutor attached to the Court of Appeal and the National Commission on Data Processing and Civil Liberties (CNIL), which was an independent administrative authority. While limiting the period of retention of data to twenty-five years, the Decree also provided that the person concerned could request deletion of the data, and a judicial remedy to that end was available should the public prosecutor refuse deletion. In the instant case the Government noted that the applicant had had recourse to this remedy, applying to the judge responsible for civil liberties and detention matters and then to the First President of the Court of Appeal. They also submitted that the Court of Cassation had considered the applicant’s appeal on points of law from the angle of a fair trial, even though it had declared the appeal inadmissible. 2. The Court’s assessment (a) Whether there was interference 29. The Court reiterates that the retention of fingerprints on the national authorities’ records in connection with an identified or identifiable individual constitutes an interference with the right to respect for private life (see S. and Marper, cited above, § 86). (b) Whether the interference was justified i. Legal basis 30. Such interference must therefore be in accordance with the law, which presupposes the existence of a basis in domestic law compatible with the rule of law. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82; Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; and S. and Marper, cited above, § 95). The level of precision required of domestic legislation – which cannot, however, provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, among other authorities, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI, and S. and Marper, cited above, § 96). 31. In the instant case, the Court finds that the interference was in accordance with the law, that is to say with Article 55-1 of the Code of Criminal Procedure and Decree no. 87-249 of 8 April 1987 as amended. As to whether the legislation at issue was sufficiently clear and precise in terms of the conditions for storing, using and deleting personal data, the Court notes that the applicant mentioned these problems as part of his arguments on the proportionality of the interference. At all events, the Court considers that these aspects are in his case closely related to the broader issue of whether the interference was necessary in a democratic society and that such an examination of the “quality” of the law in the instant case relates to the analysis set out below of the proportionality of the interference at issue (see S. and Marper, cited above, § 99). (ii) Legitimate aim 32. The Court further notes that the interference pursued a legitimate aim, namely the detection and, therefore, prevention of crime (see S. and Marper, cited above, § 100). (iii) Necessity of the interference (α) General principles 33. It therefore remains to be seen whether the interference in question can be considered “necessary in a democratic society”, which means that it must answer a “pressing social need” and, in particular, be proportionate to the legitimate aim pursued, and the reasons adduced by the national authorities to justify it must be “relevant and sufficient” (see S. and Marper, cited above, § 101). 34. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, and S. and Marper, cited above). A margin of appreciation, the extent of which varies depending on a number of factors, including the nature of the activities restricted and the aims pursued by the restrictions (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 88, ECHR 1999-VI; Gardel v. France, no. 16428/05, ECHR 2009; B.B. v. France, no. 5335/06; and M.B. v. France, no. 22115/06, 17 December 2009, §§ 60, 59 and 51 respectively), must therefore, in principle, be left to the States in this context (see, among many other authorities, Klass and Others v. Germany, 6 September 1978, § 49, series A no. 28). The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights (see Connors v. the United Kingdom, no. 66746/01, § 82, 27 May 2004, and S. and Marper, cited above, § 102). Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I; S. and Marper, cited above; and Gardel, B.B. v. France and M.B. v. France, cited above, §§ 61, 60 and 52 respectively). Where, however, there is no consensus within the member States of the Council of Europe either as to the relative importance of the interest at stake or as to the best means of protecting it, the margin will be wider (see Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V). 35. The protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. The domestic law must therefore afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article (see S. and Marper, cited above, § 103, and Gardel, B.B. and M.B., cited above, §§ 62, 61 and 53 respectively). In line with its findings in S. and Marper (cited above), the Court is of the opinion that the need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored, and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. The domestic law must also afford adequate guarantees that retained personal data were efficiently protected from misuse and abuse (ibid.). 36. Lastly, of particular concern to the Court in the present context is the risk of stigmatisation, stemming from the fact that persons in the applicant’s position, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. While, from this angle, the retention of private data cannot be equated with the voicing of suspicions, the conditions of retention of the data must not give the impression that the persons concerned are not being treated as innocent (see S. and Marper, cited above, § 122). (β) Application of the above principles in the instant case 37. In the instant case, the measure at issue, which does not per se impose any obligation on the applicant, entails sufficiently well-defined procedures as regards consultation, concerning both the persons authorised to consult the database and the authorisation system governing identification operations in line with the purpose of the database (contrast Khelili v. Switzerland, no. 16188/07, § 64, 18 October 2011). 38. The Court notes that the same cannot be said of the system for collecting and retaining data. 39. The Court notes at the outset that the purpose of the database, notwithstanding the legitimate aim pursued, necessarily involves adding and retaining as many names as possible, as is borne out by the reasoning adopted by the judge with responsibility for civil liberties and detention matters in his order of 25 August 2006 (see paragraph 14 above). 40. It also notes that the public prosecutor’s refusal to delete the prints taken during the second set of proceeding was motivated by the need to protect the applicant’s interests by ruling out his involvement should someone else attempt to steal his identity (see paragraph 12 above). Besides the fact that such a reason is not explicitly mentioned in the provisions of Article 1 of the impugned decree, barring a particularly extensive interpretation of this Article, the Court considers that accepting the argument based on an alleged guarantee of protection against potential identity theft would in practice be tantamount to justifying the storage of information on the whole population of France, which would most definitely be excessive and irrelevant. 41. Moreover, in addition to the primary function of the database, which is to facilitate efforts to find and identify the perpetrators of serious crimes and other major offences, the decree mentions another function, namely to facilitate “the prosecution, investigation and trial of cases referred to the judicial authority”, without specifying whether this is confined to serious crimes and other major offences. It also covers “persons who have been charged in criminal proceedings and whose identification is required” (Article 3-2 of the decree), and so can embrace all offences de facto, including mere summary offences, in the hypothesis that this would help identify the perpetrators of crimes and offences as specified in Article 1 of the Decree (see paragraph 17 above). At all events, the circumstances of the case, which concerned book theft and was discontinued, show that the instrument applies to minor offences. The instant case is thus very different from those specifically relating to such serious offences as organised crime (see S. and Marper, cited above) or sexual assault (see Gardel, B.B. v. France and M.B. v. France, cited above). 42. Furthermore, the Court notes that the decree draws no distinction based on whether or not the person concerned has been convicted by a court, or has even been prosecuted. In S. and Marper, the Court highlighted the risk of stigmatisation, stemming from the fact that persons who had either been acquitted or had their cases discontinued - and were therefore entitled to the presumption of innocence – were treated in the same way as convicted persons (ibid., § 22). The situation in the instant case is similar on this point, as the applicant was acquitted and discharged in an initial set of proceedings, and subsequently had the charges against him dropped. 43. In the Court’s view, the provisions of the impugned decree on the procedure for the retention of data also fail to provide sufficient protection for the persons in question. 44. In connection with the possibility of deleting such data, the Court considers that the right at any time to submit a deletion request to the court is liable, in the words of the 25 August 2006 order, to conflict with the interests of the investigating authorities, which require access to a database with as many references as possible (see paragraph 14 above). Accordingly, since the interests at stake are contradictory, if only partially, the deletion, which is not in fact a right, provides a safeguard which is “theoretical and illusory” rather than “practical and effective”. 45. The Court notes that while the retention of information stored in the file is limited in time, it nevertheless extends to twenty-five years. Having regard to its previous finding that the chances of deletion requests succeeding are at best hypothetical, a twenty-five-year time-limit is in practice tantamount to indefinite retention, or at least, as the applicant contends, a standard period rather than a maximum one. 46. In conclusion, the Court considers that the respondent State has overstepped its margin of appreciation in this matter, as the regulations on the retention in the impugned database of the fingerprints of persons suspected of having committed offences but not convicted, as applied to the applicant in the instant case, do not strike a fair balance between the competing public and private interests at stake. Consequently, the retention of the data must be seen as a disproportionate interference with the applicant’s right to respect for his private life and cannot be regarded as necessary in a democratic society. 47. There has accordingly been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 48. The applicant also complained that the procedure for requesting a deletion was unfair. He relied on Article 6 § 1 of the Convention, the relevant provisions of which read as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a ... tribunal ...”. 49. Besides the fact that this complaint partly overlaps with the one under Article 8 of the Convention, having regard to all the information in its possession and to the extent that it has jurisdiction to rule on the allegations put forward, the Court has found no appearance of a violation of the rights and freedoms secured under the Convention and the Protocols thereto. 50. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 51. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 52. The applicant, having been granted legal assistance during proceedings before the Court, did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. | The Court held that there had been a violation of Article 8 of the Convention, finding that the retention of the data amounted to disproportionate interference with the applicant’s right to respect for his private life and could not be said to be necessary in a democratic society. The Court noted in particular that the French State had overstepped its margin of appreciation in the matter as the system for retaining the fingerprints of persons suspected of an offence but not convicted, as applied to the applicant in the present case, did not strike a fair balance between the competing public and private interests at stake. |
851 | Interception of communications, phone tapping and secret surveillance | II. RELEVANT LAW AND PRACTICE A. Introduction 19. The following account is confined to the law and practice in England and Wales relating to the interception of communications on behalf of the police for the purposes of the prevention and detection of crime. The expression "interception" is used to mean the obtaining of information about the contents of a communication by post or telephone without the consent of the parties involved. 20. It has for long been the practice for the interception of postal and telephone communications in England and Wales to be carried out on the authority of a warrant issued by a Secretary of State, nowadays normally the Secretary of State for the Home Department (the Home Secretary). There is no overall statutory code governing the matter, although various statutory provisions are applicable thereto. The effect in domestic law of these provisions is the subject of some dispute in the current proceedings. Accordingly, the present summary of the facts is limited to what is undisputed, the submissions in relation to the contested aspects of these provisions being dealt with in the part of the judgment "as to the law". 21. Three official reports available to the public have described and examined the working of the system for the interception of communications. Firstly, a Committee of Privy Councillors under the chairmanship of Lord Birkett was appointed in June 1957 "to consider and report upon the exercise by the Secretary of State of the executive power to intercept communications and, in particular, under what authority, to what extent and for what purposes this power has been exercised and to what use information so obtained has been put; and to recommend whether, how and subject to what safeguards, this power should be exercised ...". The Committee ’ s report (hereinafter referred to as "the Birkett report") was published in October 1957 (as Command Paper 283). The Government of the day announced that they accepted the report and its recommendations, and were taking immediate steps to implement those recommendations calling for a change in procedure. Subsequent Governments, in the person of the Prime Minister or the Home Secretary, publicly reaffirmed before Parliament that the arrangements relating to the interception of communications were strictly in accordance with the procedures described and recommended in the Birkett report. Secondly, a Command Paper entitled "The Interception of Communications in Great Britain" was presented to Parliament by the then Home Secretary in April 1980 (Command Paper 7873 - hereinafter referred to as "the White Paper"). The purpose of the White Paper was to bring up to date the account given in the Birkett report. Finally, in March 1981 a report by Lord Diplock, a Lord of Appeal in Ordinary who had been appointed to monitor the relevant procedures on a continuing basis (see paragraphs 54 and 55 below), was published outlining the results of the monitoring he had carried out to date. 22. The legal basis of the practice of intercepting telephone communications was also examined by the Vice-Chancellor in his judgment in the action which the applicant brought against the Metropolitan Police Commissioner (see paragraphs 31-36 below). 23. Certain changes have occurred in the organisation of the postal and telephone services since 1957, when the Birkett Committee made its report. The Post Office, which ran both services, was then a Department of State under the direct control of a Minister (the Postmaster General). By virtue of the Post Office Act 1969, it became a public corporation with a certain independence of the Crown, though subject to various ministerial powers of supervision and control exercised at the material time by the Home Secretary. The Post Office Act 1969 was repealed in part and amended by the British Telecommunications Act 1981. That Act divided the Post Office into two corporations: the Post Office, responsible for mail, and British Telecommunications, responsible for telephones. The 1981 Act made no change of substance in relation to the law governing interceptions. For the sake of convenience, references in the present judgment are to the position as it was before the 1981 Act came into force. B. Legal position relating to interception of communications prior to 1969 24. The existence of a power vested in the Secretary of State to authorise by warrant the interception of correspondence, in the sense of detaining and opening correspondence transmitted by post, has been acknowledged from early times and its exercise has been publicly known (see the Birkett report, Part I, especially paras. 11, 17 and 39). The precise origin in law of this executive authority is obscure (ibid., para. 9). Nevertheless, although none of the Post Office statutes (of 1710, 1837, 1908 or 1953) contained clauses expressly conferring authority to intercept communications, all recognised the power as an independently existing power which it was lawful to exercise (ibid., paras. 17 and 38). 25. At the time of the Birkett report, the most recent statutory provision recognising the right of interception of a postal communication was section 58 sub-section 1 of the Post Office Act 1953, which provides: "If any officer of the Post Office, contrary to his duty, opens ... any postal packet in course of transmission by post, or wilfully detains or delays ... any such postal packet, he shall be guilty of a misdemeanour .... Provided that nothing in this section shall extend to ... the opening, detaining or delaying of a postal packet ... in obedience to an express warrant in writing under the hand of a Secretary of State." "Postal packet" is defined in section 87 sub-section 1 of the Act as meaning: "a letter, postcard, reply postcard, newspaper, printed packet, sample packet or parcel and every packet or article transmissible by post, and includes a telegram". Section 58, which is still in force, reproduced a clause that had been on the statute book without material amendment since 1710. 26. So far as telecommunications are further concerned, it is an offence under section 45 of the Telegraph Act 1863 if an official of the Post Office "improperly divulges to any person the purport of any message". Section 11 of the Post Office (Protection) Act 1884 creates a similar offence in relation to telegrams. In addition, section 20 of the Telegraph Act 1868 makes it a criminal offence if any Post Office official "shall, contrary to his duty, disclose or in any way make known or intercept the contents or any part of the contents of any telegraphic message or any message entrusted to the [Post Office] for the purpose of transmission". These provisions are still in force. 27. It was held in a case decided in 1880 (Attorney General v. Edison Telephone Company, (1880) 6 Queen ’ s Bench Division 244) that a telephone conversation is a "telegraphic communication" for the purposes of the Telegraph Acts. It has not been disputed in the present proceedings that the offences under the Telegraph Acts apply to telephone conversations. 28. The power to intercept telephone messages has been exercised in England and Wales from time to time since the introduction of the telephone. Until the year 1937, the Post Office, which was at that time a Department of Government, acted upon the view that the power which the Crown exercised in intercepting telephone messages was a power possessed by any operator of telephones and was not contrary to law. Consequently, no warrants by the Secretary of State were issued and arrangements for the interception of telephone conversations were made directly between the police authorities and the Director-General of the Post Office. In 1937, the position was reviewed by the Home Secretary and the Postmaster General (the Minister then responsible for the administration of the Post Office) and it was decided, as a matter of policy, that it was undesirable that records of telephone conversations should be made by Post Office servants and disclosed to the police without the authority of the Secretary of State. The view was taken that the power which had for long been exercised to intercept postal communications on the authority of a warrant of the Secretary of State was, by its nature, wide enough to include the interception of telephone communications. Since 1937 it had accordingly been the practice of the Post Office to intercept telephone conversations only on the express warrant of the Secretary of State (see the Birkett report, paras. 40-41). The Birkett Committee considered that the power to intercept telephone communications rested upon the power plainly recognised by the Post Office statutes as existing before the enactment of the statutes ( Birkett report, para. 50). It concluded (ibid., para. 51): "We are therefore of the opinion that the state of the law might fairly be expressed in this way. (a) The power to intercept letters has been exercised from the earliest times, and has been recognised in successive Acts of Parliament. (b) This power extends to telegrams. (c) It is difficult to resist the view that if there is a lawful power to intercept communications in the form of letters and telegrams, then it is wide enough to cover telephone communications as well." C. Post Office Act 1969 29. Under the Post Office Act 1969, the "Post Office" ceased to be a Department of State and was established as a public corporation of that name with the powers, duties and functions set out in the Act. In consequence of the change of status of the Post Office and of the fact that the Post Office was no longer under the direct control of a Minister of the Crown, it became necessary to make express statutory provision in relation to the interception of communications on the authority of a warrant of the Secretary of State. By section 80 of the Act it was therefore provided as follows: "A requirement to do what is necessary to inform designated persons holding office under the Crown concerning matters and things transmitted or in course of transmission by means of postal or telecommunication services provided by the Post Office may be laid on the Post Office for the like purposes and in the like manner as, at the passing of this Act, a requirement may be laid on the Postmaster General to do what is necessary to inform such persons concerning matters and things transmitted or in course of transmission by means of such services provided by him." 30. The 1969 Act also introduced, for the first time, an express statutory defence to the offences under the Telegraph Acts mentioned above (at paragraph 26), similar to that which exists under section 58 para. 1 of the Post Office Act 1953. This was effected by paragraph 1 sub-paragraph 1 of Schedule 5 to the Act, which reads: "In any proceedings against a person in respect of an offence under section 45 of the Telegraph Act 1863 or section 11 of the Post Office (Protection) Act 1884 consisting in the improper divulging of the purport of a message or communication or an offence under section 20 of the Telegraph Act 1868 it shall be a defence for him to prove that the act constituting the offence was done in obedience to a warrant under the hand of a Secretary of State." D. Judgment of Sir Robert Megarry V.-C. in Malone v. Commissioner of Police of the Metropolis 31. In the civil action which he brought against the Metropolitan Police Commissioner, Mr. Malone sought various relief including declarations to the following effect: - that any "tapping" (that is, interception, monitoring or recording) of conversations on his telephone lines without his consent, or disclosing the contents thereof, was unlawful even if done pursuant to a warrant of the Home Secretary; - that he had rights of property, privacy and confidentiality in respect of conversations on his telephone lines and that the above-stated tapping and disclosure were in breach of those rights; - that the tapping of his telephone lines violated Article 8 (art. 8) of the Convention. In his judgment, delivered on 28 February 1979, the Vice-Chancellor noted that he had no jurisdiction to make the declaration claimed in respect of Article 8 (art. 8) of the Convention. He made a detailed examination of the domestic law relating to telephone tapping, held in substance that the practice of tapping on behalf of the police as recounted in the Birkett report was legal and accordingly dismissed the action. 32. The Vice-Chancellor described the central issue before him as being in simple form: is telephone tapping in aid of the police in their functions relating to crime illegal? He further delimited the question as follows: "... the only form of telephone tapping that has been debated is tapping which consists of the making of recordings by Post Office officials in some part of the existing telephone system, and the making of those recordings available to police officers for the purposes of transcription and use. I am not concerned with any form of tapping that involved electronic devices which make wireless transmissions, nor with any process whereby anyone trespasses onto the premises of the subscriber or anyone else to affix tapping devices or the like. All that I am concerned with is the legality of tapping effected by means of recording telephone conversations from wires which, though connected to the premises of the subscriber, are not on them." ([1979] 2 All England Law Reports, p. 629) 33. The Vice-Chancellor held that there was no right of property (as distinct from copyright) in words transmitted along telephone lines (ibid., p. 631). As to the applicant ’ s remaining contentions based on privacy and confidentiality, he observed firstly that no assistance could be derived from cases dealing with other kinds of warrant. Unlike a search of premises, the process of telephone tapping on Post Office premises did not involve any act of trespass and so was not prima facie illegal (ibid., p. 640). Secondly, referring to the warrant of the Home Secretary, the Vice-Chancellor remarked that such warrant did not "purport to be issued under the authority of any statute or of the common law". The decision to introduce such warrants in 1937 seemed "plainly to have been an administrative decision not dictated or required by statute" (ibid.). He referred, however, to section 80 of the Post Office Act 1969 and Schedule 5 to the Act, on which the Solicitor General had based certain contentions summarised as follows: "Although the previous arrangements had been merely administrative, they had been set out in the Birkett report a dozen years earlier, and the section plainly referred to these arrangements; ... A warrant was not needed to make the tapping lawful: it was lawful without any warrant. But where the tapping was done under warrant ... [section 80] afforded statutory recognition of the lawfulness of the tapping." (ibid., p. 641) "In their essentials", stated the Vice-Chancellor, "these contentions seem to me to be sound." He accepted that, by the 1969 Act, "Parliament has provided a clear recognition of the warrant of the Home Secretary as having an effective function in law, both as providing a defence to certain criminal charges, and also as amounting to an effective requirement for the Post Office to do certain acts" (ibid., pp. 641-642). The Vice-Chancellor further concluded that there was in English law neither a general right of privacy nor, as the applicant had contended, a particular right of privacy to hold a telephone conversation in the privacy of one ’ s home without molestation (ibid., pp. 642-644). Moreover, no duty of confidentiality existed between the Post Office and the telephone subscriber; nor was there any other obligation of confidence on a person who overheard a telephone conversation, whether by means of tapping or otherwise (ibid., pp. 645-647). 34. Turning to the arguments based on the Convention, the Vice-Chancellor noted firstly that the Convention was not part of the law of England and, as such, did not confer on the applicant direct rights that could be enforced in the English courts (ibid., p. 647). He then considered the applicant ’ s argument that the Convention, as interpreted by the European Court in the case of Klass and Others (judgment of 6 September 1978, Series A no. 28), could be used as a guide to assist in the determination of English law on a point that was uncertain. He observed that the issues before him did not involve construing legislation enacted with the purpose of giving effect to obligations imposed by the Convention. Where Parliament had abstained from legislating on a point that was plainly suitable for legislation, it was difficult for the court to lay down new rules that would carry out the Crown ’ s treaty obligations, or to discover for the first time that such rules had always existed. He compared the system of safeguards considered in the Klass case with the English system, as described in the Birkett report, and concluded: "... Not a single one of these safeguards is to be found as a matter of established law in England, and only a few corresponding provisions exist as a matter of administrative procedure. It does not, of course, follow that a system with fewer or different safeguards will fail to satisfy Article 8 (art. 8) in the eyes of the European Court of Human Rights. At the same time, it is impossible to read the judgment in the Klass case without it becoming abundantly clear that a system which has no legal safeguards whatever has small chance of satisfying the requirements of that Court, whatever administrative provisions there may be. ... Even if the system [in operation in England] were to be considered adequate in its conditions, it is laid down merely as a matter of administrative procedure, so that it is unenforceable in law, and as a matter of law could at any time be altered without warning or subsequent notification. Certainly in law any ‘ adequate and effective safeguards against abuse ’ are wanting. In this respect English law compares most unfavourably with West German law: this is not a subject on which it is possible to feel any pride in English law. I therefore find it impossible to see how English law could be said to satisfy the requirements of the Convention, as interpreted in the Klass case, unless that law not only prohibited all telephone tapping save in suitably limited classes of case, but also laid down detailed restrictions on the exercise of the power in those limited classes." This conclusion did not, however, enable the Vice-Chancellor to decide the case in the way the applicant sought: "It may perhaps be that the common law is sufficiently fertile to achieve what is required by the first limb of [the above-stated proviso]: possible ways of expressing such a rule may be seen in what I have already said. But I see the greatest difficulty in the common law framing the safeguards required by the second limb. Various institutions or offices would have to be brought into being to exercise various defined functions. The more complex and indefinite the subject-matter the greater the difficulty in the court doing what it is really appropriate, and only appropriate, for the legislature to do. Furthermore, I find it hard to see what there is in the present case to require the English courts to struggle with such a problem. Give full rein to the Convention, and it is clear that when the object of the surveillance is the detection of crime, the question is not whether there ought to be a general prohibition of all surveillance, but in what circumstances, and subject to what conditions and restrictions, it ought to be permitted. It is those circumstances, conditions and restrictions which are at the centre of this case; and yet it is they which are the least suitable for determination by judicial decision. ... Any regulation of so complex a matter as telephone tapping is essentially a matter for Parliament, not the courts; and neither the Convention nor the Klass case can, I think, play any proper part in deciding the issue before me." (ibid., pp. 647-649) He added that "this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation", and continued: "However much the protection of the public against crime demands that in proper cases the police should have the assistance of telephone tapping, I would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses. The fact that a telephone user is suspected of crime increases rather than diminishes this requirement: suspicions, however reasonably held, may sometimes prove to be wholly unfounded. If there were effective and independent safeguards, these would not only exclude some cases of excessive zeal but also, by their mere existence, provide some degree of reassurance for those who are resentful of the police or believe themselves to be persecuted." (ibid., p. 649) 35. As a final point of substance, the Vice-Chancellor dealt, in the following terms, with the applicant ’ s contention that as no power to tap telephones had been given by either statute or common law, the tapping was necessarily unlawful: "I have already held that, if such tapping can be carried out without committing any breach of the law, it requires no authorisation by statute or common law; it can lawfully be done simply because there is nothing to make it unlawful. Now that I have held that such tapping can indeed be carried out without committing any breach of the law, the contention necessarily fails. I may also say that the statutory recognition given to the Home Secretary ’ s warrant seems to me to point clearly to the same conclusion." (ibid., p. 649) 36. The Vice-Chancellor therefore held that the applicant ’ s claim failed in its entirety. He made the following concluding remarks as to the ambit of his decision: "Though of necessity I have discussed much, my actual decision is closely limited. It is confined to the tapping of the telephone lines of a particular person which is effected by the Post Office on Post Office premises in pursuance of a warrant of the Home Secretary in a case in which the police have just cause or excuse for requesting the tapping, in that it will assist them in performing their functions in relation to crime, whether in prevention, detection, discovering the criminals or otherwise, and in which the material obtained is used only by the police, and only for those purposes. In particular, I decide nothing on tapping effected for other purposes, or by other persons, or by other means; nothing on tapping when the information is supplied to persons other than the police; and nothing on tapping when the police use the material for purposes other than those I have mentioned. The principles involved in my decision may or may not be of some assistance in such other cases, whether by analogy or otherwise: but my actual decision is limited in the way that I have just stated." (ibid., p. 651) E. Subsequent consideration of the need for legislation 37. Following the Vice-Chancellor ’ s judgment, the necessity for legislation concerning the interception of communications was the subject of review by the Government, and of Parliamentary discussion. On 1 April 1980, on the publication of the White Paper, the Home Secretary announced in Parliament that after carefully considering the suggestions proffered by the Vice-Chancellor in his judgment, the Government had decided not to introduce legislation. He explained the reasons for this decision in the following terms: "The interception of communications is, by definition, a practice that depends for its effectiveness and value upon being carried out in secret, and cannot therefore be subject to the normal processes of parliamentary control. Its acceptability in a democratic society depends on its being subject to ministerial control, and on the readiness of the public and their representatives in Parliament to repose their trust in the Ministers concerned to exercise that control responsibly and with a right sense of balance between the value of interception as a means of protecting order and security and the threat which it may present to the liberty of the subject. Within the necessary limits of secrecy, I and my right hon. Friends who are concerned are responsible to Parliament for our stewardship in this sphere. There would be no more sense in making such secret matters justiciable than there would be in my being obliged to reveal them in the House. If the power to intercept were to be regulated by statute, then the courts would have power to inquire into the matter and to do so, if not publicly, then at least in the presence of the complainant. This must surely limit the use of interception as a tool of investigation. The Government have come to the clear conclusion that the procedures, conditions and safeguards described in the [White] Paper ensure strict control of interception by Ministers, are a good and sufficient protection for the liberty of the subject, and would not be made significantly more effective for that purpose by being embodied in legislation. The Government have accordingly decided not to introduce legislation on these matters" ( Hansard, House of Commons, 1 April 1980, cols. 205-207). He gave an assurance that "Parliament will be informed of any changes that are made in the arrangements" (ibid., col. 208). 38. In the course of the Parliamentary proceedings leading to the enactment of the British Telecommunications Act 1981, attempts were made to include in the Bill provisions which would have made it an offence to intercept mail or matters sent by public telecommunication systems except pursuant to a warrant issued under conditions which corresponded substantially to those described in the White Paper. The Government successfully opposed these moves, primarily on the grounds that secrecy, which was essential if interception was to be effective, could not be maintained if the arrangements for interception were laid down by legislation and thus became justiciable in the courts. The present arrangements and safeguards were adequate and the proposed new provisions were, in the Government ’ s view, unworkable and unnecessary (see, for example, the statement of the Home Secretary in the House of Commons on 1 April 1981, Hansard, cols. 334-338). The 1981 Act eventually contained a re-enactment of section 80 of the Post Office Act 1969 applicable to the Telecommunications Corporation (Schedule 3, para. 1, of the 1981 Act). Section 80 of the 1969 Act itself continues to apply to the Post Office. 39. In its report presented to Parliament in January 1981 (Command Paper 8092), the Royal Commission on Criminal Procedure, which had been appointed in 1978, also considered the possible need for legislation in this field. In the chapter entitled "Investigative powers and the rights of the citizen", the Royal Commission made the following recommendation in regard to what it termed "surreptitious surveillance" ( paras. 3.56-3.60): "... [A] lthough we have no evidence that the existing controls are inadequate to prevent abuse, we think that there are strong arguments for introducing a system of statutory control on similar lines to that which we have recommended for search warrants. As with all features of police investigative procedures, the value of prescribing them in statutory form is that it brings clarity and precision to the rules; they are open to public scrutiny and to the potential of Parliamentary review. So far as surveillance devices in general are concerned this is not at present so. ... We therefore recommend that the use of surveillance devices by the police (including the interception of letters and telephone communications) should be regulated by statute." These recommendations were not adopted by the Government. 40. A few months later, the Law Commission, a permanent body set up by statute in 1965 for the purpose of promoting reform of the law, produced a report on breach of confidence (presented to Parliament in October 1981 - Command Paper 8388). This report examined, inter alia, the implications for the civil law of confidence of the acquisition of information by surveillance devices, and made various proposals for reform of the law ( paras. 6.35 - 6.46). The Law Commission, however, felt that the question whether "the methods which the police ... may use to obtain information should be defined by statute" was a matter outside the scope of its report ( paras. 6.43 and 6.44 in fine). No action has been taken by the Government on this report. F. The practice followed in relation to interceptions 41. Details of the current practices followed in relation to interceptions are set out in the Government ’ s White Paper of 1980. The practices there summarised are essentially the same as those described and recommended in the Birkett report, and referred to in Parliamentary statements by successive Prime Ministers and Home Secretaries in 1957, 1966, 1978 and 1980. 42. The police, H.M. Customs and Excise and the Security Service may request authority for the interception of communications for the purposes of "detection of serious crime and the safeguarding of the security of the State" (paragraph 2 of the White Paper). Interception may take place only on the authority of the Secretary of State given by warrant under his own hand. In England and Wales, the power to grant such warrants is exercised by the Home Secretary or occasionally, if he is ill or absent, by another Secretary of State on his behalf (ibid.). In the case of warrants applied for by the police to assist them in the detection of crime, three conditions must be satisfied before a warrant will be issued: (a) the offence must be "really serious"; (b) normal methods of investigation must have been tried and failed or must, from the nature of things, be unlikely to succeed; (c) there must be good reason to think that an interception would be likely to lead to an arrest and a conviction. 43. As is indicated in the Birkett report ( paras. 58-61), the concept of "serious crime" has varied from time to time. Changing circumstances have made some acts serious offences which were not previously so regarded; equally, some offences formerly regarded as serious enough to justify warrants for the interception of communications have ceased to be so regarded. Thus, the interception of letters believed to contain obscene or indecent matter ceased in the mid-1950s ( Birkett report, para. 60); no warrants for the purpose of preventing the transmission of illegal lottery material have been issued since November 1953 (ibid., para. 59). "Serious crime" is defined in the White Paper, and subject to the addition of the concluding words has been consistently defined since September 1951 ( Birkett report, para. 64), as consisting of "offences for which a man with no previous record could reasonably be expected to be sentenced to three years ’ imprisonment, or offences of lesser gravity in which either a large number of people is involved or there is good reason to apprehend the use of violence" (White Paper, para. 4). In April 1982, the Home Secretary announced to Parliament that, on a recommendation made by Lord Diplock in his second report (see paragraph 55 below), the concept of a serious offence was to be extended to cover offences which would not necessarily attract a penalty of three years ’ imprisonment on first conviction, but in which the financial rewards of success were very large ( Hansard, House of Commons, 21 April 1982, col. 95). Handling (including receiving) stolen goods, knowing or believing them to be stolen, is an offence under section 22 of the Theft Act 1968, carrying a maximum penalty of fourteen years ’ imprisonment. According to the Government, the receiving of stolen property is regarded as a very serious offence since the receiver lies at the root of much organised crime and encourages large-scale thefts (see the Birkett report, para. 103). The detection of receivers of stolen property was at the time of the Birkett report (ibid.), and remains, one of the important uses to which interception of communications is put by the police. 44. Applications for warrants must be made in writing and must contain a statement of the purpose for which interception is requested and of the facts and circumstances which support the request. Every application is submitted to the Permanent Under-Secretary of State - the senior civil servant - at the Home Office (or, in his absence, a nominated deputy), who, if he is satisfied that the application meets the required criteria, submits it to the Secretary of State for approval and signature of a warrant. In a case of exceptional urgency, if the Secretary of State is not immediately available to sign a warrant, he may be asked to give authority orally, by telephone; a warrant is signed and issued as soon as possible thereafter (White Paper, para. 9). In their submissions to the Commission and the Court, the Government supplemented as follows the information given in the White Paper. Except in cases of exceptional urgency, an application will only be considered in the Home Office if it is put forward by a senior officer of the Metropolitan Police, in practice the Assistant Commissioner (Crime), and also, in the case of another police force, by the chief officer of police concerned. Close personal consideration is given by the Secretary of State to every request for a warrant submitted to him. In the debate on the British Telecommunications Bill in April 1981, the then Home Secretary confirmed before Parliament that he did not and would not sign any warrant for interception unless he were personally satisfied that the relevant criteria were met ( Hansard, House of Commons, 1 April 1981, col. 336). 45. Every warrant sets out the name and address of the recipient of mail in question or the telephone number to be monitored, together with the name and address of the subscriber. Any changes require the authority of the Secretary of State, who may delegate power to give such authority to the Permanent Under-Secretary. If both the mail and the telephone line of a person are to be intercepted, two separate warrants are required (White Paper, para. 10). 46. Every warrant is time-limited, specifying a date on which it expires if not renewed. Warrants are in the first place issued with a time-limit set at a defined date not exceeding two months from the date of issue. Warrants may be renewed only on the personal authority of the Secretary of State and may be renewed for not more than one month at a time. In each case where renewal of a warrant is sought, the police are required first to satisfy the Permanent Under-Secretary of State at the Home Office that the reasons for which the warrant was first issued are still valid and that the case for renewal is justified: a submission to the Secretary of State for authority to renew the warrant is only made if the Permanent Under-Secretary is so satisfied (White Paper, para. 11). 47. Warrants are reviewed monthly by the Secretary of State. When an interception is considered to be no longer necessary, it is immediately discontinued and the warrant is cancelled on the authority of the Permanent Under-Secretary of State at the Home Office. In addition to the monthly review of each warrant by the Secretary of State, the Metropolitan Police carry out their own review each month of all warrants arising from police applications: where an interception is deemed to be no longer necessary, instructions are issued to the Post Office to discontinue the interception forthwith and the Home Office is informed so that the warrant can be cancelled ( Birkett report, paras. 72-74; White Paper, paras. 12-13). 48. In accordance with the recommendations of the Birkett report (para. 84), records are kept in the Home Office, showing in respect of each application for a warrant: (a) the ground on which the warrant is applied for; (b) a copy of the warrant issued or a note of rejection of the application; (c) the dates of any renewals of the warrant; (d) a note of any other decisions concerning the warrant; (e) the date of cancellation of the warrant (White Paper, para. 14). 49. On the issue of a warrant, the interception is effected by the Post Office. Telephone interceptions are carried out by a small staff of Post Office employees who record the conversation but do not themselves listen to it except from time to time to ensure that the apparatus is working correctly. In the case of postal communications, the Post Office makes a copy of the correspondence. As regards the interception of communications for the purpose of the detection of crime, in practice the "designated person holding office under the Crown" to whom the Post Office is required by sub-section 80 of the Post Office Act 1969 to transmit the intercepted information (see paragraph 29 above) is invariably the Commissioner of Police of the Metropolis. The product of the interception - that is, the copy of the correspondence or the tape-recording - is made available to a special unit of the Metropolitan Police who note or transcribe only such parts of the correspondence or the telephone conversation as are relevant to the investigation. When the documentary record has been made, the tape is returned to the Post Office staff, who erase the recording. The tape is subsequently re-used. The majority of recordings are erased within one week of their being taken ( Birkett report, paras. 115-117; White Paper, para. 15). 50. A Consolidated Circular to Police, issued by the Home Office in 1977, contained the following paragraphs in a section headed "Supply of information by Post Office to police": "1.67 Head Postmasters and Telephone Managers have been given authority to assist the police as indicated in paragraph 1.68 below without reference to Post Office Headquarters, in circumstances where the police are seeking information (a) in the interests of justice in the investigation of a serious indictable offence; or (b) when they are acting in a case on the instructions of the Director of Public Prosecutions; or (c) when a warrant has been issued for the arrest of the offender, or the offence is such that he can be arrested without a warrant; or ... 1.68 Head Postmasters, or (in matters affecting the telecommunication service) Telephone Managers, may afford the following facilities in response to a request made by the officer locally in charge of the force at the town where the Head Postmaster is stationed ... (g) Telegrams. Telegrams may be shown to the police on the authority of the sender or addressee. Apart from this the Post Office is prepared to give authority in particular cases of serious crime where the inspection of a telegram is a matter of urgency, and will do so at once on telephonic application, by a chief officer of police or a responsible officer acting on his behalf, to the Chief Inspector, Post Office Investigation Division. ... ... 1.69 ... 1.70 As regards any matter not covered by paragraphs 1.67 and 1.68 above, if the police are in urgent need of information which the Post Office may be able to furnish in connection with a serious criminal offence, the police officer in charge of the investigation should communicate with the Duty Officer, Post Office Investigation Division who will be ready to make any necessary inquiries of other branches of the Post Office and to communicate any information which can be supplied." In May 1984, the Home Office notified chief officers of police that paragraph 1.68 (g), described as containing advice and information to the police which was "in some respects misleading", was henceforth to be regarded as deleted, with the exception of the first complete sentence. At the same time, chief officers of police were reminded that the procedures for the interception of communications were set out in the White Paper and rigorously applied in all cases. 51. The notes or transcriptions of intercepted communications are retained in the police interception unit for a period of twelve months or for as long as they may be required for the purposes of investigation. The contents of the documentary record are communicated to the officers of the appropriate police force engaged in the criminal investigation in question. When the notes or transcriptions are no longer required for the purposes of the investigation, the documentary record is destroyed ( Birkett report, para. 118; White Paper, para. 15). The product of intercepted communications is used exclusively for the purpose of assisting the police to pursue their investigations: the material is not tendered in evidence, although the interception may itself lead to the obtaining of information by other means which may be tendered in evidence ( Birkett report, para. 151; White Paper, para. 16). In accordance with the recommendation of the Birkett Committee ( Birkett report, para. 101), information obtained by means of an interception is never disclosed to private individuals or private bodies or to courts or tribunals of any kind (White Paper, para. 17). 52. An individual whose communications have been intercepted is not informed of the fact of interception or of the information thereby obtained, even when the surveillance and the related investigations have terminated. 53. For security reasons it is the normal practice not to disclose the numbers of interceptions made ( Birkett report, paras. 119-121; White Paper, paras. 24-25). However, in order to allay public concern as to the extent of interception, both the Birkett report and the White Paper gave figures for the number of warrants granted annually over the years preceding their publication. The figures in the White Paper (Appendix III) indicate that in England and Wales between 1969 and 1979 generally something over 400 telephone warrants and something under 100 postal warrants were granted annually by the Home Secretary. Paragraph 27 of the White Paper also gave the total number of Home Secretary warrants in force on 31 December for the years 1958 (237), 1968 (273) and 1978 (308). The number of telephones installed at the end of 1979 was, according to the Government, 26,428,000, as compared with 7,327,000 at the end of 1957. The Government further stated that over the period from 1958 to 1978 there was a fourfold increase in indictable crime, from 626,000 to 2,395,000. 54. When the White Paper was published on 1 April 1980, the Home Secretary announced in Parliament that the Government, whilst not proposing to introduce legislation (see paragraph 37 above), intended to appoint a senior member of the judiciary to conduct a continuous independent check so as to ensure that interception of communications was being carried out for the established purposes and in accordance with the established procedures. His terms of reference were stated to be: "to review on a continuing basis the purposes, procedures, conditions and safeguards governing the interception of communications on behalf of the police, HM Customs and Excise and the security service as set out in [the White Paper]; and to report to the Prime Minister" ( Hansard, House of Commons, 1 April 1980, cols. 207-208). It was further announced that the person appointed would have the right of access to all relevant papers and the right to request additional information from the departments and organisations concerned. For the purposes of his first report, which would be published, he would examine all the arrangements set out in the White Paper; his subsequent reports on the detailed operation of the arrangements would not be published, but Parliament would be informed of any findings of a general nature and of any changes that were made in the arrangements (ibid.). 55. Lord Diplock, a Lord of Appeal in Ordinary since 1968, was appointed to carry out the review. In his first report, published in March 1981, Lord Diplock recorded, inter alia, that, on the basis of a detailed examination of apparently typical cases selected at random, he was satisfied ( i ) that, in each case, the information provided by the applicant authorities to the Secretary of State in support of the issue of a warrant was stated with accuracy and candour and that the procedures followed within the applicant authorities for vetting applications before submission to the Secretary of State were appropriate to detect and correct any departure from proper standards; (ii) that warrants were not applied for save in proper cases and were not continued any longer than was necessary to carry out their legitimate purpose. Lord Diplock further found from his examination of the system that all products of interception not directly relevant to the purpose for which the warrant was granted were speedily destroyed and that such material as was directly relevant to that purpose was given no wider circulation than was essential for carrying it out. In early 1982, Lord Diplock submitted his second report. As the Secretary of State informed Parliament, Lord Diplock ’ s general conclusion was that during the year 1981 the procedure for the interception of communications had continued to work satisfactorily and the principles set out in the White Paper had been conscientiously observed by all departments concerned. In 1982, Lord Diplock resigned his position and was succeeded by Lord Bridge of Harwich, a Lord of Appeal in Ordinary since 1980. G. "Metering" 56. The process known as "metering" involves the use of a device called a meter check printer which registers the numbers dialled on a particular telephone and the time and duration of each call. It is a process which was designed by the Post Office for its own purposes as the corporation responsible for the provision of telephone services. Those purposes include ensuring that the subscriber is correctly charged, investigating complaints of poor quality service and checking possible abuse of the telephone service. When "metering" a telephone, the Post Office - now British Telecommunications (see paragraph 23 above) - makes use only of signals sent to itself. In the case of the Post Office, the Crown does not require the keeping of records of this kind but, if the records are kept, the Post Office may be compelled to produce them in evidence in civil or criminal cases in the ordinary way, namely by means of a subpoena duces tecum. In this respect the position of the Post Office does not differ from that of any other party holding relevant records as, for instance, a banker. Neither the police nor the Crown are empowered to direct or compel the production of the Post Office records otherwise than by the normal means. However, the Post Office do on occasions make and provide such records at the request of the police if the information is essential to police enquiries in relation to serious crime and cannot be obtained from other sources. This practice has been made public in answer to parliamentary questions on more than one occasion (see, for example, the statement by the Home Secretary to Parliament, Hansard, House of Commons, 23 February 1978, cols. 760-761). H. Possible domestic remedies in respect of the alleged violation of the Convention 57. Commission, Government and applicant are agreed that, at least in theory, judicial remedies are available in England and Wales, in both the civil and the criminal courts, in respect of interceptions of communications carried out unlawfully. The remedies referred to by the Government were summarised in the pleadings as follows: ( i ) In the event of any interception or disclosure of intercepted material effected by a Post Office employee "contrary to duty" or "improperly" and without a warrant of the Secretary of State, a criminal offence would be committed under the Telegraph Acts 1863 and 1868 and the Post Office (Protection) Act 1884 (as regards telephone interceptions) and under the Post Office Act 1953 (as regards postal interceptions) (see paragraphs 25-27 above). On complaint that communications had been unlawfully intercepted, it would be the duty of the police to investigate the matter and to initiate a prosecution if satisfied that an offence had been committed. If the police failed to prosecute, it would be open to the complainant himself to commence a private prosecution. (ii) In addition to ( i ) above, in a case of unlawful interception by a Post Office employee without a warrant, an individual could obtain an injunction from the domestic courts to restrain the person or persons concerned and the Post Office itself from carrying out further unlawful interception of his communications: such an injunction is available to any person who can show that a private right or interest has been interfered with by a criminal act (see, for example, Gouriet v. The Union of Post Office Workers, [1977] 3 All England Law Reports 70; Ex parte Island Records Ltd., [1978] 3 All England Law Reports 795). (iii) On the same grounds, an action would lie for an injunction to restrain the divulging or publication of the contents of intercepted communications by employees of the Post Office, otherwise than under a warrant of the Secretary of State, or to any person other than the police. Besides these remedies, unauthorised interference with mail would normally constitute the tort of trespass to (that is, wrongful interference with) chattels and so give rise to a civil action for damages. 58. The Government further pointed to the following possible non-judicial remedies: ( i ) In the event that the police were themselves implicated in an interception carried out without a warrant, a complaint could additionally be lodged under section 49 of the Police Act 1964, which a chief officer of police would, by the terms of the Act, be obliged to investigate and, if an offence appeared to him to have been committed, to refer to the Director of Public Prosecutions. (ii) If a complainant were able to establish merely that the police or the Secretary of State had misappreciated the facts or that there was not an adequate case for imposing an interception, the individual concerned would be able to complain directly to the Secretary of State himself or through his Member of Parliament: if a complainant were to give the Home Secretary information which suggested that the grounds on which a warrant had been issued did not in fact fall within the published criteria or were inadequate or mistaken, the Home Secretary would immediately cause it to be investigated and, if the complaint were found to be justified, would immediately cancel the warrant. (iii) Similarly, if there were non-compliance with any of the relevant administrative rules of procedure set out in the Birkett report and the White Paper, a remedy would lie through complaint to the Secretary of State who would, in a proper case, cancel or revoke a warrant and thereby terminate an interception which was being improperly carried out. According to the Government, in practice there never has been a case where a complaint in any of the three above circumstances has proved to be well-founded. PROCEEDINGS BEFORE THE COMMISSION 59. In his application of 19 July 1979 to the Commission (no. 8691/79), Mr. Malone complained of the admitted interception of a telephone conversation to which he had been a party. He further stated his belief that, at the behest of the police, his correspondence as well as that of his wife had been intercepted, his telephone lines "tapped" and, in addition, his telephone "metered" by a device recording all the numbers dialled. He claimed that by reason of these matters, and of relevant law and practice in England and Wales, he had been the victim of breaches of Articles 8 and 13 (art. 8, art. 13) of the Convention. 60. The Commission declared the application admissible on 13 July 1981. In its report adopted on 17 December 1982 (Article 31) (art. 31), the Commission expressed the opinion: - that there had been a breach of the applicant ’ s rights under Article 8 (art. 8) by reason of the admitted interception of a telephone conversation to which he was a party and of the law and practice in England and Wales governing the interception of postal and telephone communications on behalf of the police (eleven votes, with one abstention); - that it was unnecessary in the circumstances of the case to investigate whether the applicant ’ s rights had also been interfered with by the procedure known as "metering" of telephone calls (seven votes to three, with two abstentions); - that there had been a breach of the applicant ’ s rights under Article 13 (art. 13) in that the law in England and Wales did not provide an "effective remedy before a national authority" in respect of interceptions carried out under a warrant (ten votes to one, with one abstention). The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to the present judgment. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 61. At the hearings on 20 February 1984, the Government maintained the submissions set out in their memorial, whereby they requested the Court "(1) with regard to Article 8 (art. 8), ( i ) to decide and declare that the interference with the exercise of the rights guaranteed by Article 8 para. 1 (art. 8-1) of the Convention resulting from the measures of interception of communications on behalf of the police in England and Wales for the purpose of the detection and prevention of crime, and any application of those measures to the applicant, were and are justified under paragraph 2 of Article 8 (art. 8-2) as being in accordance with the law and necessary in a democratic society for the prevention of crime and for the protection of the rights and freedoms of others and that accordingly there has been no breach of Article 8 (art. 8) of the Convention; (ii) (a) to decide and declare that it is unnecessary in the circumstances of the present case to investigate whether the applicant ’ s rights under Article 8 (art. 8) were interfered with by the so-called system of ‘ metering ’; alternatively (b) to decide and declare that the facts found disclose no breach of the applicant ’ s rights under Article 8 (art. 8) by reason of the said system of ‘ metering ’; (2) with regard to Article 13 (art. 13), to decide and declare that the circumstances of the present case disclose no breach of Article 13 (art. 13) of the Convention". AS TO THE LAW I. ALLEGED BREACH OF ARTICLE 8 (art. 8) 62. Article 8 (art. 8) provides as follows: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." The applicant alleged violation of this Article (art. 8) under two heads. In his submission, the first violation resulted from interception of his postal and telephone communications by or on behalf of the police, or from the law and practice in England and Wales relevant thereto; the second from "metering" of his telephone by or on behalf of the police, or from the law and practice in England and Wales relevant thereto. A. Interception of communications 1. Scope of the issue before the Court 63. It should be noted from the outset that the scope of the case before the Court does not extend to interception of communications in general. The Commission ’ s decision of 13 July 1981 declaring Mr. Malone ’ s application to be admissible determines the object of the case brought before the Court (see, inter alia, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 63, para. 157). According to that decision, the present case "is directly concerned only with the question of interceptions effected by or on behalf of the police" - and not other government services such as H.M. Customs and Excise and the Security Service - "within the general context of a criminal investigation, together with the legal and administrative framework relevant to such interceptions". 2. Whether there was any interference with an Article 8 (art. 8) right 64. It was common ground that one telephone conversation to which the applicant was a party was intercepted at the request of the police under a warrant issued by the Home Secretary (see paragraph 14 above). As telephone conversations are covered by the notions of "private life" and "correspondence" within the meaning of Article 8 (art. 8) (see the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 21, para. 41), the admitted measure of interception involved an "interference by a public authority" with the exercise of a right guaranteed to the applicant under paragraph 1 of Article 8 (art. 8-1). Despite the applicant ’ s allegations, the Government have consistently declined to disclose to what extent, if at all, his telephone calls and mail have been intercepted otherwise on behalf of the police (see paragraph 16 above). They did, however, concede that, as a suspected receiver of stolen goods, he was a member of a class of persons against whom measures of postal and telephone interception were liable to be employed. As the Commission pointed out in its report (paragraph 115), the existence in England and Wales of laws and practices which permit and establish a system for effecting secret surveillance of communications amounted in itself to an "interference ... with the exercise" of the applicant ’ s rights under Article 8 (art. 8), apart from any measures actually taken against him (see the above-mentioned Klass and Others judgment, ibid.). This being so, the Court, like the Commission (see the report, paragraph 114), does not consider it necessary to inquire into the applicant ’ s further claims that both his mail and his telephone calls were intercepted for a number of years. 3. Whether the interferences were justified 65. The principal issue of contention was whether the interferences found were justified under the terms of paragraph 2 of Article 8 (art. 8-2), notably whether they were "in accordance with the law" and "necessary in a democratic society" for one of the purposes enumerated in that paragraph. (a) "In accordance with the law" ( i ) General principles 66. The Court held in its Silver and Others judgment of 25 March 1983 (Series A no. 61, pp. 32-33, para. 85) that, at least as far as interferences with prisoners ’ correspondence were concerned, the expression "in accordance with the law/ prévue par la loi" in paragraph 2 of Article 8 (art. 8-2) should be interpreted in the light of the same general principles as were stated in the Sunday Times judgment of 26 April 1979 (Series A no. 30) to apply to the comparable expression "prescribed by law/ prévues par la loi" in paragraph 2 of Article 10 (art. 10-2). The first such principle was that the word "law/ loi" is to be interpreted as covering not only written law but also unwritten law (see the above-mentioned Sunday Times judgment, p. 30, para. 47). A second principle, recognised by Commission, Government and applicant as being applicable in the present case, was that "the interference in question must have some basis in domestic law" (see the the above-mentioned Silver and Others judgment, p. 33, para. 86). The expressions in question were, however, also taken to include requirements over and above compliance with the domestic law. Two of these requirements were explained in the following terms: "Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as ‘ law ’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail." (Sunday Times judgment, p. 31, para. 49; Silver and Others judgment, p. 33, paras. 87 and 88) 67. In the Government ’ s submission, these two requirements, which were identified by the Court in cases concerning the imposition of penalties or restrictions on the exercise by the individual of his right to freedom of expression or to correspond, are less appropriate in the wholly different context of secret surveillance of communications. In the latter context, where the relevant law imposes no restrictions or controls on the individual to which he is obliged to conform, the paramount consideration would appear to the Government to be the lawfulness of the administrative action under domestic law. The Court would reiterate its opinion that the phrase "in accordance with the law" does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention (see, mutatis mutandis, the above-mentioned Silver and Others judgment, p. 34, para. 90, and the Golder judgment of 21 February 1975, Series A no. 18, p. 17, para. 34). The phrase thus implies - and this follows from the object and purpose of Article 8 (art. 8) - that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 (art. 8-1) (see the report of the Commission, paragraph 121). Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident (see the above-mentioned Klass and Others judgment, Series A no. 28, pp. 21 and 23, paras. 42 and 49). Undoubtedly, as the Government rightly suggested, the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence. 68. There was also some debate in the pleadings as to the extent to which, in order for the Convention to be complied with, the "law" itself, as opposed to accompanying administrative practice, should define the circumstances in which and the conditions on which a public authority may interfere with the exercise of the protected rights. The above-mentioned judgment in the case of Silver and Others, which was delivered subsequent to the adoption of the Commission ’ s report in the present case, goes some way to answering the point. In that judgment, the Court held that "a law which confers a discretion must indicate the scope of that discretion", although the detailed procedures and conditions to be observed do not necessarily have to be incorporated in rules of substantive law (ibid., Series A no. 61, pp. 33-34, paras. 88-89). The degree of precision required of the "law" in this connection will depend upon the particular subject-matter (see the above-mentioned Sunday Times judgment, Series A no. 30, p. 31, para. 49). Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference. (ii) Application in the present case of the foregoing principles 69. Whilst the exact legal basis of the executive ’ s power in this respect was the subject of some dispute, it was common ground that the settled practice of intercepting communications on behalf of the police in pursuance of a warrant issued by the Secretary of State for the purposes of detecting and preventing crime, and hence the admitted interception of one of the applicant ’ s telephone conversations, were lawful under the law of England and Wales. The legality of this power to intercept was established in relation to telephone communications in the judgment of Sir Robert Megarry dismissing the applicant ’ s civil action (see paragraphs 31-36 above) and, as shown by the independent findings of the Birkett report (see paragraph 28 in fine above), is generally recognised for postal communications. 70. The issue to be determined is therefore whether, under domestic law, the essential elements of the power to intercept communications were laid down with reasonable precision in accessible legal rules that sufficiently indicated the scope and manner of exercise of the discretion conferred on the relevant authorities. This issue was considered under two heads in the pleadings: firstly, whether the law was such that a communication passing through the services of the Post Office might be intercepted, for police purposes, only pursuant to a valid warrant issued by the Secretary of State and, secondly, to what extent the circumstances in which a warrant might be issued and implemented were themselves circumscribed by law. 71. On the first point, whilst the statements of the established practice given in the Birkett report and the White Paper are categorical para. 55 of the Birkett report and para. 2 of the White Paper - see paragraph 42 above), the law of England and Wales, as the applicant rightly pointed out (see paragraph 56 of the Commission ’ s report), does not expressly make the exercise of the power to intercept communications subject to the issue of a warrant. According to its literal terms, section 80 of the Post Office Act 1969 provides that a "requirement" may be laid on the Post Office to pass information to the police, but it does not in itself render illegal interceptions carried out in the absence of a warrant amounting to a valid "requirement" (see paragraph 29 above). The Commission, however, concluded that this appeared to be the effect of section 80 when read in conjunction with the criminal offences created by section 58 para. 1 of the Post Office Act 1953 and by the other statutory provisions referred to in paragraph 1, sub-paragraph 1 of Schedule 5 to the 1969 Act (see paragraphs 129-135 of the report, and paragraphs 25, 26 and 30 above). The reasoning of the Commission was accepted and adopted by the Government but, at least in respect of telephone interceptions, disputed by the applicant. He relied on certain dicta to the contrary in the judgment of Sir Robert Megarry (see paragraphs 31-36 above, especially paragraphs 33 and 35). He also referred to the fact that the 1977 Home Office Consolidated Circular to Police made no mention, in the section headed "Supply of information by Post Office to police", of the warrant procedure (see paragraph 50 above). 72. As to the second point, the pleadings revealed a fundamental difference of view as to the effect, if any, of the Post Office Act 1969 in imposing legal restraints on the purposes for which and the manner in which interception of communications may lawfully be authorised by the Secretary of State. 73. According to the Government, the words in section 80 - and, in particular, the phrase "for the like purposes and in the like manner as, at the passing of this Act, a requirement may be laid" - define and restrict the power to intercept by reference to the practice which prevailed in 1968. In the submission of the Government, since the entry into force of the 1969 Act a requirement to intercept communications on behalf of the police can lawfully be imposed on the Post Office only by means of a warrant signed personally by the Secretary of State for the exclusive purpose of the detection of crime and satisfying certain other conditions. Thus, by virtue of section 80 the warrant must, as a matter of law, specify the relevant name, address and telephone number; it must be time-limited and can only be directed to the Post Office, not the police. In addition, the Post Office is only required and empowered under section 80 to make information available to "designated persons holding office under the Crown". Any attempt to broaden or otherwise modify the purposes for which or the manner in which interceptions may be authorised would require an amendment to the 1969 Act which could only be achieved by primary legislation. 74. In its reasoning, which was adopted by the applicant, the Commission drew attention to various factors of uncertainty arguing against the Government ’ s view as to the effect of the 1969 Act (see paragraphs 136-142 of the report). 75. Firstly, the relevant wording of the section, and especially the word "may", appeared to the Commission to authorise the laying of a requirement on the Post Office for whatever purposes and in whatever manner it would previously have been lawfully possible to place a ministerial duty on the Postmaster General, and not to be confined to what actually did happen in practice in 1968. Yet at the time of the Birkett report (see, for example, paragraphs 15, 21, 27, 54-55, 56, 62 and 75), and likewise at the time when the 1969 Act was passed, no clear legal restrictions existed on the permissible "purposes" and "manner". Indeed the Birkett report at one stage (paragraph 62) described the Secretary of State ’ s discretion as "absolute", albeit specifying how its exercise was in practice limited. 76. A further difficulty seen by the Commission is that, on the Government ’ s interpretation, not all the details of the existing arrangements are said to have been incorporated into the law by virtue of section 80 but at least the principal conditions, procedures or purposes for the issue of warrants authorising interceptions. Even assuming that the reference to "like purposes" and "like manner" is limited to previous practice as opposed to what would have been legally permissible, it was by no means evident to the Commission what aspects of the previous "purposes" and "manner" have been given statutory basis, so that they cannot be changed save by primary legislation, and what aspects remain matters of administrative discretion susceptible of modification by governmental decision. In this connection, the Commission noted that the notion of "serious crime", which in practice serves as a condition governing when a warrant may be issued for the purpose of the detection of crime, has twice been enlarged since the 1969 Act without recourse to Parliament (see paragraphs 42-43 above). 77. The Commission further pointed out that the Government ’ s analysis of the law was not shared by Sir Robert Megarry in his judgment of February 1979. He apparently accepted the Solicitor General ’ s contentions before him that section 80 referred back to previous administrative arrangements for the issue of warrants (see paragraph 33 above). On the other hand, he plainly considered that these arrangements remained administrative in character and had not, even in their principal aspects, been made binding legal requirements by virtue of section 80 (see paragraph 34 above). 78. It was also somewhat surprising, so the Commission observed, that no mention of section 80 as regulating the issue of warrants should have been made in the White Paper published by the Government in the wake of Sir Robert Megarry ’ s judgment (see paragraph 21 above). Furthermore, the Home Secretary, when presenting the White Paper to Parliament in April 1980, expressed himself in terms suggesting that the existing arrangements as a whole were matters of administrative practice not suitable for being "embodied in legislation", and were subject to change by governmental decision of which Parliament would be informed (see paragraphs 37 in fine and 54 in fine above). 79. The foregoing considerations disclose that, at the very least, in its present state the law in England and Wales governing interception of communications for police purposes is somewhat obscure and open to differing interpretations. The Court would be usurping the function of the national courts were it to attempt to make an authoritative statement on such issues of domestic law (see, mutatis mutandis, the Deweer judgment of 27 February 1980, Series A no. 35, p. 28, in fine, and the Van Droogenbroeck judgment of 24 June 1982, Series A no. 50, p. 30, fourth sub-paragraph). The Court is, however, required under the Convention to determine whether, for the purposes of paragraph 2 of Article 8 (art. 8-2), the relevant law lays down with reasonable clarity the essential elements of the authorities ’ powers in this domain. Detailed procedures concerning interception of communications on behalf of the police in England and Wales do exist (see paragraphs 42-49, 51-52 and 54-55 above). What is more, published statistics show the efficacy of those procedures in keeping the number of warrants granted relatively low, especially when compared with the rising number of indictable crimes committed and telephones installed (see paragraph 53 above). The public have been made aware of the applicable arrangements and principles through publication of the Birkett report and the White Paper and through statements by responsible Ministers in Parliament (see paragraphs 21, 37-38, 41, 43 and 54 above). Nonetheless, on the evidence before the Court, it cannot be said with any reasonable certainty what elements of the powers to intercept are incorporated in legal rules and what elements remain within the discretion of the executive. In view of the attendant obscurity and uncertainty as to the state of the law in this essential respect, the Court cannot but reach a similar conclusion to that of the Commission. In the opinion of the Court, the law of England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. To that extent, the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking. (iii) Conclusion 80. In sum, as far as interception of communications is concerned, the interferences with the applicant ’ s right under Article 8 (art. 8) to respect for his private life and correspondence (see paragraph 64 above) were not "in accordance with the law". (b) "Necessary in a democratic society" for a recognised purpose 81. Undoubtedly, the existence of some law granting powers of interception of communications to aid the police in their function of investigating and detecting crime may be "necessary in a democratic society ... for the prevention of disorder or crime", within the meaning of paragraph 2 of Article 8 (art. 8-2) (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 23, para. 48). The Court accepts, for example, the assertion in the Government ’ s White Paper (at para. 21) that in Great Britain "the increase of crime,and particularly the growth of organised crime, the increasing sophistication of criminals and the ease and speed with which they can move about have made telephone interception an indispensable tool in the investigation and prevention of serious crime". However, the exercise of such powers, because of its inherent secrecy, carries with it a danger of abuse of a kind that is potentially easy in individual cases and could have harmful consequences for democratic society as a whole ( ibid., p. 26, para. 56). This being so, the resultant interference can only be regarded as "necessary in a democratic society" if the particular system of secret surveillance adopted contains adequate guarantees against abuse (ibid., p. 23, paras. 49-50). 82. The applicant maintained that the system in England and Wales for the interception of postal and telephone communications on behalf of the police did not meet this condition. In view of its foregoing conclusion that the interferences found were not "in accordance with the law", the Court considers that it does not have to examine further the content of the other guarantees required by paragraph 2 of Article 8 (art. 8-2) and whether the system circumstances. B. Metering 83. The process known as "metering" involves the use of a device (a meter check printer) which registers the numbers dialled on a particular telephone and the time and duration of each call (see paragraph 56 above). In making such records, the Post Office - now British Telecommunications - makes use only of signals sent to itself as the provider of the telephone service and does not monitor or intercept telephone conversations at all. From this, the Government drew the conclusion that metering, in contrast to interception of communications, does not entail interference with any right guaranteed by Article 8 (art. 8). 84. As the Government rightly suggested, a meter check printer registers information that a supplier of a telephone service may in principle legitimately obtain, notably in order to ensure that the subscriber is correctly charged or to investigate complaints or possible abuses of the service. By its very nature, metering is therefore to be distinguished from interception of communications, which is undesirable and illegitimate in a democratic society unless justified. The Court does not accept, however, that the use of data obtained from metering, whatever the circumstances and purposes, cannot give rise to an issue under Article 8 (art. 8). The records of metering contain information, in particular the numbers dialled, which is an integral element in the communications made by telephone. Consequently, release of that information to the police without the consent of the subscriber also amounts, in the opinion of the Court, to an interference with a right guaranteed by Article 8 (art. 8). 85. As was noted in the Commission ’ s decision declaring Mr. Malone ’ s application admissible, his complaints regarding metering are closely connected with his complaints regarding interception of communications. The issue before the Court for decision under this head is similarly limited to the supply of records of metering to the police "within the general context of a criminal investigation, together with the legal and administrative framework relevant [thereto]" (see paragraph 63 above). 86. In England and Wales, although the police do not have any power, in the absence of a subpoena, to compel the production of records of metering, a practice exists whereby the Post Office do on occasions make and provide such records at the request of the police if the information is essential to police enquiries in relation to serious crime and cannot be obtained from other sources (see paragraph 56 above). The applicant, as a suspected receiver of stolen goods, was, it may be presumed, a member of a class of persons potentially liable to be directly affected by this practice. The applicant can therefore claim, for the purposes of Article 25 (art. 25) of the Convention, to be a "victim" of a violation of Article 8 (art. 8) by reason of the very existence of this practice, quite apart from any concrete measure of implementation taken against him (cf., mutatis mutandis, paragraph 64 above). This remains so despite the clarification by the Government that in fact the police had neither caused his telephone to be metered nor undertaken any search operations on the basis of any list of telephone numbers obtained from metering (see paragraph 17 above; see also, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 20, para. 37 in fine). 87. Section 80 of the Post Office Act 1969 has never been applied so as to "require" the Post Office, pursuant to a warrant of the Secretary of State, to make available to the police in connection with the investigation of crime information obtained from metering. On the other hand, no rule of domestic law makes it unlawful for the Post Office voluntarily to comply with a request from the police to make and supply records of metering (see paragraph 56 above). The practice described above, including the limitative conditions as to when the information may be provided, has been made public in answer to parliamentary questions (ibid.). However, on the evidence adduced before the Court, apart from the simple absence of prohibition, there would appear to be no legal rules concerning the scope and manner of exercise of the discretion enjoyed by the public authorities. Consequently, although lawful in terms of domestic law, the interference resulting from the existence of the practice in question was not "in accordance with the law", within the meaning of paragraph 2 of Article 8 (art. 8-2) (see paragraphs 66 to 68 above). 88. This conclusion removes the need for the Court to determine whether the interference found was "necessary in a democratic society" for one of the aims enumerated in paragraph 2 of Article 8 (art. 8-2) (see, mutatis mutandis, paragraph 82 above). C. Recapitulation 89. There has accordingly been a breach of Article 8 (art. 8) in the applicant ’ s case as regards both interception of communications and release of records of metering to the police. II. ALLEGED BREACH OF ARTICLE 13 (art. 13) 90. The applicant submitted that no effective domestic remedy existed for the breaches of Article 8 (art. 8) of which he complained and that, consequently, there had also been a violation of Article 13 (art. 13) which provides: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." 91. Having regard to its decision on Article 8 (art. 8) (see paragraph 89 above), the Court does not consider it necessary to rule on this issue. III. APPLICATION OF ARTICLE 50 (art. 50) 92. The applicant claimed just satisfaction under Article 50 (art. 50) under four heads: ( i ) legal costs that he was ordered by Sir Robert Megarry to pay to the Metropolitan Commissioner of Police, assessed at £9,011.00, (ii) costs, including disbursements, paid by him to his own lawyers in connection with the same action, assessed at £5,443.20, (iii) legal costs incurred in the proceedings before the Commission and the Court, as yet unquantified, and (iv) "compensation of a moderate amount" for interception of his telephone conversations. He further sought recovery of interest in respect of the first two items. The Government have so far made no submissions on these claims. 93. The question is thus not yet ready for decision and must be reserved; in the circumstances of the case, it is appropriate to refer the matter back to the Chamber (Rule 53 paras. 1 and 3 of the Rules of Court). | The Court held that there had been a violation of Article 8 of the Convention, as regards both interception of communications and release of records of metering to the police, because they had not been in accordance with the law. |
1,003 | Cases concerning the war in Bosnia and Herzegovina | II. RELEVANT INTERNATIONAL AND DOMESTIC LAW A. Relevant international law 1. Missing persons 32. Armed conflicts often lead to the disappearance of hundreds or even thousands of people. Pursuant to Articles 32-34 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, families have the right to be informed of the fate of missing relatives; the parties to a conflict must search for persons reported missing by an adverse party and facilitate enquiries made by members of families dispersed as a result of the conflict so as to help them restore contact with one another and try to bring them together again; and lists showing the exact location and markings of the graves, together with particulars of the dead interred therein, must be exchanged. The International Committee of the Red Cross (ICRC), with the assistance of its Central Tracing Agency, has long experience in searching for soldiers and combatants who go missing during military operations (“missing in action”) and for civilians who are reported missing as a consequence of armed conflict. 2. Enforced disappearance 33. This is a much narrower concept. A recent definition of “enforced disappearance” is set out in Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance of 20 December 2006 [7] : “For the purposes of this Convention, ‘ enforced disappearance ’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” 34. The widespread or systematic practice of enforced disappearance is described as a crime against humanity in Article 7 of the Rome Statute of the International Criminal Court of 17 July 1998. 3. Mutual assistance between Bosnia and Herzegovina and Serbia 35. The Agreement between Bosnia and Herzegovina and Serbia on Mutual Assistance in Civil and Criminal Matters ( published in Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 11/05 of 8 December 2005, amendments published in Official Gazette no. 8/10 of 29 July 2010 ) entered into force on 9 February 2006. Under Article 39 thereof, when a citizen or resident of one Contracting State is suspected of having committed an offence in the territory of the other Contracting State, the latter may request the former to take proceedings in the case. While such a request is pending, the requesting State may not prosecute the suspected person for the same offence. Moreover, a person in respect of whom a final criminal judgment has been rendered in the requested State may not be prosecuted for the same offence in the requesting State if he or she has been acquitted or if the sanction imposed has been enforced or the subject of a pardon or amnesty (Article 41 of the Agreement). Lastly, when one State intends to request the transfer of proceedings, it may also request the other State to provisionally arrest the suspected person (Article 40a of the Agreement). B. Relevant domestic law 1. Bosnia and Herzegovina (a) Criminal legislation 36. The 2003 Criminal Code (published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003, amendments published in Official Gazette nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004, 30/05 of 17 May 2005, 53/06 of 13 July 2006, 55/06 of 18 July 2006, 32/07 of 30 April 2007 and 8/10 of 2 February 2010) entered into force on 1 March 2003. The relevant part of Article 172 of the Code provides as follows: “1. Whoever, as part of a widespread or systematic attack directed against any civilian population, with knowledge of such an attack perpetrates any of the following acts: ... i ) enforced disappearance of persons; ... shall be punished by imprisonment for a term not less than ten years or long-term imprisonment. 2. For the purpose of paragraph 1 of this Article the following terms shall have the following meanings: ... h) Enforced disappearance of persons means the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with an aim of removing them from the protection of the law for a prolonged period of time. ... ” Furthermore, in accordance with Article 239 of the Code, non-enforcement of a decision of the Human Rights Chamber is an offence: “An official of the State, the Entities or the Brčko District who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, the Court of Bosnia and Herzegovina, the Human Rights Chamber or the European Court of Human Rights, or who prevents the enforcement of any such decision, or who frustrates the enforcement of any such decision in some other way, shall be punished by imprisonment for a term between six months and five years.” 37. The 2003 Code of Criminal Procedure (published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 36/03 of 21 November 2003, amendments published in Official Gazette nos. 32/03 of 28 October 2003, 26/04 of 7 June 2004, 63/04 of 31 December 2004, 13/05 of 9 March 2005, 48/05 of 19 July 2005, 46/06 of 19 June 2006, 76/06 of 25 September 2006, 29/07 of 17 April 2007, 32/07 of 30 April 2007, 53/07 of 16 July 2007, 76/07 of 15 October 2007, 15/08 of 25 February 2008, 58/08 of 21 July 2008, 12/09 of 10 February 2009, 16/09 of 24 February 2009 and 93/09 of 1 December 2009) entered into force on 1 March 2003. Article 247 of the Code reads as follows: “ An accused may never be tried in absentia. ” (b) War Crimes Sections within the Court of Bosnia and Herzegovina 38. War Crimes Sections of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina have been set up pursuant to the Court of Bosnia and Herzegovina Act 200 0 (a consolidated version thereof published in Official Gazette of Bosnia and Herzegovina no. 49/09 of 22 June 2009, amendments published in Official Gazette nos. 74/09 of 21 September 2009 and 97/09 of 15 December 2009). ( c ) Declaration of presumed death 39. Any person or body demonstrating a legitimate interest may lodge a request for a declaration of presumed death with respect to those who went missing during the 1992-95 war as from the expiry of the waiting period, which is one year from the cessation of the hostilities ( the Non-Contentious Procedure Act 1989, published in Official Gazette of the Socialist Republic of Bosnia and Herzegovina no. 10/89 of 23 March 1989, which was in force in the Federation of Bosnia and Herzegovina until 28 January 1998 and in the Republika Srpska until 15 May 2009; the Non-Contentious Procedure Act 1998, published in Official Gazette of the Federation of Bosnia and Herzegovina no. 2/98 of 20 January 1998, amendments published in Official Gazette nos. 39/04 of 24 July 2004 and 73/05 of 28 December 2005; and the Non-Contentious Procedure Act 2009, published in Official Gazette of the Republika Srpska no. 36/09 of 7 May 2009). Pursuant to section 27(1) of the Missing Persons Act 2004, a declaration of presumed death will automatically be issued with respect to all those recorded as missing in the Central Records (see paragraph 40 below). ( d ) Missing Persons Act 2004 40. The Missing Persons Act 2004 (published in Official Gazette of Bosnia and Herzegovina no. 50/04 of 9 November 2004) entered into force on 17 November 2004. It provides, in so far as relevant, as follows: Article 3 (The right to know) “ Families of missing persons have the right to know the fate of their missing family members and relatives, their place of (temporary) residence, or if dead, the circumstances and cause of death and location of burial, if such location is known, and to receive the mortal remains. ” Article 9 (Termination of status) “ The status of missing person is terminated on the date of identification, and the process of tracing the missing person is concluded. In the event that a missing person is proclaimed dead, but the mortal remains have not been found, the process of tracing shall not be terminated. ” The Missing Persons Institute and, within that Institute, the Central Records have been set up as domestic institutions pursuant to that Act. The Missing Persons Fund, although envisaged, has not yet been set up. 2. Serbia (a) War Crimes Act 2003 41. The War Crimes Act 2003 (published in Official Gazette of the Republic of Serbia no. 67/03, amendments published in Official Gazette nos. 135/04, 61/05, 101/07 and 104/09) entered into force on 9 July 2003. The War Crimes Prosecutor, the War Crimes Police Unit and the War Crimes Sections within the Belgrade Higher Court and the Belgrade Court of Appeal have been set up pursuant to this Act. They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see section 3 of this Act). A number of persons have been convicted in Serbia for war crimes committed during the 1992-95 war in Bosnia and Herzegovina. As an example, at the request of Bosnia and Herzegovina, the Serbian authorities have taken proceedings and convicted Mr Nenad Malić of war crimes committed against Bosniacs in Stari Majdan in 1992 and sentenced him to 13 years ’ imprisonment. As another example, they have recently convicted Mr Slobodan Medić, Mr Branislav Medić, Mr Pero Petrašević and Mr Aleksandar Medić of war crimes committed against Bosniacs in Trnovo in 1995 and sentenced them to 20, 15, 13 and 5 years ’ imprisonment respectively. (b) Mutual Assistance in Criminal Matters Act 2009 42. The Mutual Assistance in Criminal Matters Act 2009 (published in Official Gazette of the Republic of Serbia no. 20/09) entered into force on 27 March 2009. Under section 16 of this Act, Serbian citizens may not be extradited. This Act repealed the corresponding provision of the Code of Criminal Procedure 2001 (published in Official Gazette of the Federal Republic of Yugoslavia no. 70/01, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) which was in force between 28 March 2002 and 27 March 2009. THE LAW 43. The applicant complained, on behalf of her husband, that Bosnia and Herzegovina had failed to fulfil its procedural obligation to investigate the disappearance and death of her husband. This complaint falls to be examined under Articles 2 and 5 of the Convention. Article 2 of the Convention provides : “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” Article 5 of the Convention provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” She further complained, under various Articles of the Convention, about the authorities ’ reactions to her quest for information. This complaint falls to be examined under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” I. ADMISSIBILITY A. Compatibility ratione temporis 44. The Government claimed that the Court lacked temporal jurisdiction to deal with this case, given that Mr Palić had disappeared and died before the ratification of the Convention by Bosnia and Herzegovina on 12 July 2002. 45. The applicant disagreed, relying on the concept of a “ continuing situation ” (she referred, among other authorities, to Cyprus v. Turkey [GC], no. 25781/94, §§ 136, 150 and 158, ECHR 2001 ‑ IV). 46. It is beyond dispute that in accordance with the general rules of international law (see, in particular, Article 28 of the Vienna Convention on the Law of Treaties of 23 May 1969) the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party (see Blečić v. Croatia [GC], no. 59532/00, § 70, ECHR 2006 ‑ III ). That being said, the Court has held that the procedural obligation arising from a disappearance will generally remain as long as the whereabouts and fate of the person are unaccounted for and it is thus of a continuing nature (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § § 147 -49, ECHR 2009 ‑ ... ). Furthermore, that obligation does not come to an end even on discovery of the body or the presumption of death. This only casts light on one aspect of the fate of the missing person and the obligation to account for the disappearance and death, as well as to identify and prosecute any perpetrator of unlawful acts in that connection, will generally remain ( ibid ., § 145). 47. The Court thus rejects the Government ’ s objection under this head. B. Six-month rule 48. Although the respondent Government did not raise any objection under this head, this issue calls for the Court ’ s consideration proprio motu. 49. While it is true that the six-month time-limit does not apply as such to continuing situations, the Court has held that, where disappearances are concerned, applicants cannot wait indefinitely before coming to Strasbourg (see Varnava and Others, cited above, § 161). Indeed, with the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish; and the Court ’ s own examination and judgment may be deprived of meaningfulness and effectiveness. Applicants must therefore make proof of a certain amount of diligence and initiative and introduce their complaints without undue delay. The following passage from the Varnava and Others judgment ( § 16 5 ) indicates what this involves: “ Nonetheless, the Court considers that applications can be rejected as out of time in disappearance cases where there has been excessive or unexplained delay on the part of applicants once they have, or should have, become aware that no investigation has been instigated or that the investigation has lapsed into inaction or become ineffective and, in any of those eventualities, there is no immediate, realistic prospect of an effective investigation being provided in the future. Where there are initiatives being pursued in regard to a disappearance situation, applicants may reasonably await developments which could resolve crucial factual or legal issues. Indeed, as long as there is some meaningful contact between families and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a moment when the relatives must realise that no effective investigation has been, or will be provided. When this stage is reached will depend, unavoidably, on the circumstances of the particular case. ” 50. The Court went on to conclude that by the end of 1990 it must have become apparent that the mechanisms set up to deal with disappearances in Cyprus no longer offered any realistic hope of progress in either finding bodies or accounting for the fate of the missing persons in the near future (see Varnava and Others, cited above, § 170). It has since rejected as out of time a number of cases because there was no evidence of any activity post-1990 which could have provided to the applicants some indication, or realistic possibility, of progress in investigative measures in relation to the disappearance of their relatives (see Orphanou and Others v. Turkey ( dec .), nos. 43422/04 et al. , 1 December 2009; Karefyllides and Others v. Turkey ( dec .), no. 45503/99, 1 December 2009; and Charalambous and Others v. Turkey ( dec .), nos. 46744/07 et al ., 1 June 2010 ). 51. The situation in Bosnia and Herzegovina is different. While it is true that the domestic authorities made slow progress in the years immediately after the war, they have since made significant efforts to locate and identify persons missing as a consequence of the war and combat the impunity. To start with, Bosnia and Herzegovina has carried out comprehensive vetting of the appointment of police and judiciary: the United Nations Mission vetted approximately 24,000 police officers between 1999 and 2002 and the High Judicial and Prosecutorial Councils screened the appointments of approximately 1,000 judges and prosecutors between 2002 and 2004. Secondly, the domestic Missing Persons Institute was set up pursuant to the Missing Persons Act 2004 (see paragraph 40 above). It has so far carried out many exhumations and identifications; for example, in seven months of 2009 the Missing Persons Institute identified 883 persons [8]. Thirdly, the creation of the Court of Bosnia and Herzegovina in 2002 and its War Crimes Sections in 2005 gave new impetus to domestic prosecutions of war crimes. That court has so far sentenced more than 40 people. Moreover, the number of convictions by the Entity and District courts, which retain jurisdiction over less sensitive cases, has considerably increased. Fourthly, in December 2008 the domestic authorities adopted the National War Crimes Strategy which provides a systematic approach to solving the problem of the large number of war crimes cases. It defines the time - frames, capacities, criteria and mechanisms for managing those cases, standardisation of court practices, issues of regional cooperation, protection and support to victims and witnesses, as well as financial aspects, and supervision over the implementation of the Strategy. One of its objectives is to process the most complex and top priority cases within seven years (that is, by the end of 2015) and other war crimes cases within fifteen years (that is, by the end of 2023), a not unreasonable period of time considering the numbers involved. Lastly, domestic authorities contribute to the successful work of the international bodies set up to deal with disappearances and other serious violations of international humanitarian law committed in Bosnia and Herzegovina (see paragraphs 7 - 8 above). 52. In view of the above and having regard to the initiatives pursued in this particular case at the relevant time, the applicant could still realistically expect that an effective investigation would be carried out when she lodged her application in 2004. Accordingly, she acted with reasonable expedition for the purposes of the six-month rule. C. Exhaustion of domestic remedies 53. The Government objected that the applicant had failed to exhaust domestic remedies by failing to seize the Constitutional Court of Bosnia and Herzegovina. 54. The applicant did not respond to this objection. 55. The Court has held that when an appeal before the Human Rights Chamber has been pursued, the applicant is not required to pursue an appeal before the Constitutional Court of Bosnia and Herzegovina concerning the same matter (see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005 ‑ XII ). There is no reason to depart from that jurisprudence. 56. Accordingly, this objection of the Government is also rejected. D. Victim status 57. The Government maintained that the decision of the Human Rights Chamber in this case had been implemented, namely the mortal remains of Mr Palić had been identified, a full investigation had been carried out and all information had been communicated to the applicant. Since the applicant had obtained an acknowledgment of a breach of her human rights from the domestic authorities and appropriate and sufficient redress (see paragraph 14 above), the Government contended that she had lost victim status. 58. The applicant disagreed. 59. The Court considers that this objection goes to the very heart of the questions whether the authorities discharged their procedural obligation to investigate the disappearance and death of Mr Palić, as required by Articles 2 and 5 of the Convention, and whether their reactions to the applicant ’ s quest for information amounted to a breach of Article 3 of the Convention (see paragraph 43 above). It would thus be more appropriately examined at the merits stage. E. Conclusion 60. Since the application is neither manifestly ill-founded within the meaning of Article 35 § 3 of the Convention nor inadmissible on any other grounds, the Court declares the application admissible and, in accordance with its decision to apply Article 29 § 1 of the Convention (see paragraph 5 above), it will immediately consider its merits. II. MERITS A. Article 2 of the Convention 61. The applicant criticised the investigation into the disappearance and death of her husband. First of all, she complained of the ineffectiveness of the investigation and about its pace, relying on the findings of the Human Rights Commission (see paragraph 18 above). Secondly, she argued that the ad hoc commissions were not independent. In particular, she alleged that one of their members, Mr Bukva, had attended the notorious meeting of 27 July 1995 (see paragraphs 11 and 21 above). Thirdly, she claimed that one of the main suspects, Mr Pećanac, had received some information concerning this case from the State Prosecutor ’ s Office. Fourthly, she submitted that the ICTY proceedings against Mr Tolimir could not absolve the respondent State of its procedural obligation under Article 2, in particular because Mr Tolimir had not been charged as a direct perpetrator (see paragraph 30 above). Lastly, she argued that Serbia should extradite Mr Pećanac and Mr Mijatović to Bosnia and Herzegovina and she referred in this connection to the case of Mr Veselin Vlahović who had been extradited from Spain to Bosnia and Herzegovina to stand trial on war crimes charges. 62. The Government denied the applicant ’ s claims and maintained that the investigation had complied with all the requirements of Article 2. 63. The Court reiterates that Article 2 requires the authorities to conduct an official investigation into an arguable claim that a person, who was last seen in their custody, subsequently disappeared in a life-threatening context. The investigation must be independent and effective in the sense that it is capable of leading to the identification and punishment of those responsible, afford a sufficient element of public scrutiny, including being accessible to the victim ’ s family, and carried out with reasonable promptness and expedition (see Varnava and Others, cited above, § 191 ). 64. In the present case, the Court first needs to examine whether the investigation could be regarded as effective. It notes that notwithstanding initial delays (see paragraph 70 below) the investigation finally led to the identification of the mortal remains of Mr Palić. Given that almost 30,000 people went missing as a result of the war in Bosnia and Herzegovina (see paragraph 6 above), this is in itself a significant achievement. The procedural obligation under Article 2 nevertheless did not come to an end with the discovery of the body (see paragraph 46 above) and the Court will next examine whether the investigation made it possible to establish the identity of the persons responsible for the disappearance and death of Mr Palić and whether those persons were eventually brought to justice. 65. The Court notes that between October 2005 and December 2006 the domestic authorities took various investigative steps which led to international arrest warrants being issued against Mr Pećanac and Mr Mijatović on suspicion of having committed an enforced disappearance as a crime against humanity (see paragraph 25 above). The investigation, it is true, has been at a standstill ever since because the main suspects live in Serbia and, as Serbian citizens, cannot be extradited (see paragraph 42 above), but Bosnia and Herzegovina cannot be held liable for that. Bosnia and Herzegovina could have requested Serbia to take proceedings in this case (see paragraph 35 above). However, the Court considers that it is not necessary to examine whether there was an obligation under the Convention to do so (see, in that connection, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § § 330-31, ECHR 2004 ‑ VII ) given that the applicant could have reported this case herself to the Serbia ’ s War Crimes Prosecutor who has jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see paragraph 41 above). Moreover, it is open to the applicant to lodge an application against Serbia if she considers that she is the victim of a breach by Serbia of her Convention rights. The applicant also referred to the case of Mr Vlahović (see paragraph 61 above). However, Mr Vlahović is not a Spanish citizen and there were accordingly no obstacles to his extradition. In these circumstances, the Court finds that the domestic criminal investigation was effective in the sense that it was capable of leading to the identification and punishment of those responsible for the disappearance and death of Mr Palić, notwithstanding the fact that there have not yet been any convictions in this connection. The procedural obligation under Article 2 is indeed not an obligation of result, but of means (see, among many authorities, Hugh Jordan v. the United Kingdom, no. 24746/94, § 107, ECHR 2001 ‑ III ). 66. The Court further notes that the respondent State arrested Mr Tolimir at the request of the ICTY and that it cooperates with the ICTY in this regard. The trial against Mr Tolimir is, however, still pending and, more importantly, he was not charged as a direct perpetrator (see paragraph 30 above). It is therefore uncertain to what extent the trial against Mr Tolimir will contribute to the identification and punishment of those directly responsible for the killing of Mr Palić. 67. As regards the requirement of independence, the Court sees no reason to doubt that the State Prosecutor ’ s Office acted independently. The applicant alleged that information had leaked from the domestic criminal investigation to Mr Pećanac, but there is no proof that Mr Pećanac obtained the impugned information from the State Prosecutor ’ s Office. It is equally possible that he could have obtained this information from anyone on the ad hoc commissions or from any other source. In any event, since it transpires from the material in the case file that the relevant authorities were instantly warned of the possibility of a leak and that necessary measures were taken, the Court does not consider this factor sufficient in itself to conclude that the domestic criminal investigation is not independent. 68. Turning to the ad hoc commissions, the Court acknowledges their important contribution to the establishment of the facts of this difficult and troubling case. That being said, it is of great concern that one of the members of the ad hoc commissions allegedly played a role, no matter how minor, in the actual disappearance of the applicant ’ s husband (see paragraph 61 above). While there is no proof that Mr Bukva had indeed attended the impugned meeting, it is regrettable that the respondent Government did not respond to these allegations. Nevertheless, given that in the circumstances of this case an effective and independent criminal investigation was the key requirement to ensure the respondent State ’ s compliance with the procedural obligation under Article 2 (see Öneryıldız v. Turkey [GC], no. 48939/99, § 93, ECHR 2004 ‑ XII, and contrast Branko Tomašić and Others v. Croatia, no. 46598/06, § 64, ECHR 2009 ‑ ... ) and the commissions had no influence on the conduct of the ongoing criminal investigation, it is not necessary to examine the question of their independence (see McKerr v. the United Kingdom, no. 28883/95, § 156, ECHR 2001 ‑ III). 69. There is no indication that the criminal investigation is not open to public scrutiny and/or that it is insufficiently accessible to the applicant. 70. As to the requirement of promptness, the Court has not overlooked that the Republika Srpska authorities acknowledged that Mr Palić had been held in a military prison administered by the VRS forces, one of the predecessors of the present Armed Forces of Bosnia and Herzegovina, and identified the officer who had taken Mr Palić from that prison only in November 2001. Some steps were then taken in early 2002, but the criminal investigation effectively started only in late 2005. It is nevertheless the case that the Court is only competent ratione temporis to look at the period after the ratification of the Convention by Bosnia and Herzegovina (that is, after 12 July 2002), while taking into consideration the state of the case at that date. It should also be reiterated that the obligations under Article 2 must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, although in a different context, Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998 ‑ VIII). The Court takes into account the complex situation in Bosnia and Herzegovina, notably in the first ten years following the war. In such a post-conflict situation, what amounts to an impossible and/or disproportionate burden must be measured by the very particular facts and context. In this connection, the Court notes that more than 100,000 people were killed, almost 30,000 people went missing and more than two million people were displaced during the war in Bosnia and Herzegovina. Inevitably choices had to be made in terms of post-war priorities and resources. Furthermore, after a long and brutal war, Bosnia and Herzegovina underwent fundamental overhaul of its internal structure and political system: Entities and Cantons were set up pursuant to the Dayton Peace Agreement, power-sharing arrangements were introduced in order to ensure effective equality between the “constituent peoples” in the post-conflict society (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, ECHR 2009 ‑ ... ), new institutions had to be created and the existing ones had to be restructured. Some reluctance on the part of the former warring parties to work with those new institutions could be expected in the post-war period, as evidenced in the present case. While it is difficult to pinpoint when exactly this process ended, the Court considers that the domestic legal system should have become capable of dealing effectively with disappearances and other serious violations of international humanitarian law by 2005, following comprehensive vetting of the appointment of police and judiciary and the establishment of the War Crimes Sections within the Court of Bosnia and Herzegovina (see paragraph 51 above). All this considered and since there has been no substantial period of inactivity post-2005 on the part of the domestic authorities in the present case, the Court concludes that, in the circumstances obtaining at the material time, the domestic criminal investigation can be considered to have been conducted with reasonable promptness and expedition. 71. In brief, the domestic authorities eventually identified the mortal remains of Mr Palić and carried out an independent and effective criminal investigation into his disappearance and death. There has been no substantial period of inactivity after 2005 on the part of the domestic authorities. Furthermore, the applicant received substantial compensation in connection with her husband ’ s disappearance (although for the period 1995-2000, see paragraph 14 above ). The Court concludes that, taking into account the special circumstances prevailing in Bosnia and Herzegovina up until 2005 and indeed the particular circumstances of the present case, there has been no violation of Article 2 of the Convention. B. Article 3 of the Convention 72. The applicant further argued that the authorities had, for many years, refused to engage, acknowledge or assist in her efforts to find out what had happened to her husband. She relied on Article 3 of the Convention. 73. The Government contested that argument. 74. The phenomenon of disappearances imposes a particular burden on the relatives of missing persons who are kept in ignorance of the fate of their loved ones and suffer the anguish of uncertainty. The Court ’ s case-law therefore recognised from very early on that the situation of the relatives may disclose inhuman and degrading treatment contrary to Article 3. The essence of the violation is not that there has been a serious human rights violation concerning the missing person; it lies in the authorities ’ reactions and attitudes to the situation when it has been brought to their attention. Other relevant factors include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, and the involvement of the family member in the attempts to obtain information about the disappeared person. The finding of such a violation is not limited to cases where the respondent State has been held responsible for the disappearance, but can arise where the failure of the authorities to respond to the quest for information by the relatives or the obstacles placed in their way, leaving them to bear the brunt of the efforts to uncover any facts, may be regarded as disclosing a flagrant, continuous and callous disregard of an obligation to account for the whereabouts and fate of a missing person (see Varnava and Others, cited above, § 200, and the authorities cited therein). 75. In the present case, the Court notes that the applicant obtained first official information about the fate of her husband more than five years after his disappearance. The domestic Human Rights Chamber held that Mr Palić had indeed been a victim of an enforced disappearance and found numerous violations of the Convention in this connection. Furthermore, the applicant received compensation for non-pecuniary damage (see paragraph 14 above). Some weight must also be attached to the fact that the mortal remains of Mr Palić were eventually identified and that an independent and effective criminal investigation was eventually carried out, although with some delays. Therefore, while there is no doubt that the applicant suffered and continues to suffer because of this case, the Court finds that the authorities ’ reactions cannot be categorised as inhuman and degrading treatment. 76. Accordingly, there has been no violation of Article 3 of the Convention. C. Article 5 of the Convention 77. Lastly, the applicant invited the Court to find a violation of Article 5 of the Convention for the reasons outlined in paragraph 61 above. 78. The Government maintained that the investigation had complied also with the requirements of Article 5 of the Convention. 79. The Court reiterates that Article 5 requires the authorities to conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see Kurt v. Turkey, 25 May 1998, § 124, Reports of Judgments and Decisions 1998 ‑ III; Cyprus v. Turkey, cited above, § 147; and Varnava and Others, cited above, § 208 ). 80. For the detailed reasons outlined in paragraphs 64 - 71 above in the context of Article 2, the Court finds that there has been no violation of Article 5 of the Convention. D. Conclusion on the Government ’ s preliminary objection 81. The Court finds that in the light of its conclusion under Articles 2, 3 and 5 it is not necessary to decide on the Government ’ s challenge to the applicant ’ s victim status (see paragraphs 57 - 59 above). | The Court held that there had been no violation of Article 2 (right to life), 3 (prohibition of inhuman or degrading treatment) or 5 (right to liberty and security) of the Convention. It found that the application was admissible, as the disappearance of the applicant’s husband had not been accounted for by 12 July 2002, the date when Bosnia and Herzegovina ratified the Convention. It further observed that despite the initial delays, the investigation had finally identified the remains of the applicant’s husband. That had been a significant achievement in itself, given that more than 30,000 people had gone missing during the war in Bosnia and Herzegovina. The prosecution authorities had been independent, and although there had been some concern in relation to one of the members of one of the ad hoc investigative commissions that had not influenced the conduct of the ongoing criminal investigation. In addition, after a long and brutal war, Bosnia and Herzegovina had had to make choices in terms of priorities and resources. |
230 | The definition of bis | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant law 26. The relevant part of the Croatian Constitution ( Ustav Republike Hrvatske, Official Gazette nos. 41/2001 and 55/2001) reads as follows : Article 31 “ ... 2. No one shall be liable to be tried or punished again in criminal proceedings for an offence of which he has already been finally acquitted or convicted in accordance with the law. Only the law may, in accordance with the Constitution or an international agreement, prescribe the situations in which proceedings may be reopened under paragraph 2 of this Article and the grounds for reopening. .. .” 27. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006) provide as follows: Article 300 “ 1. Where the accused ... disturbs order at a hearing or does not comply with the orders of the presiding judge, the latter shall warn the accused ... The panel may order that the accused be removed from the courtroom ... 2. The panel may order that the accused be removed from the courtroom for a limited time. Where the accused again disturbs order [he or she may be removed from the courtroom] until the end of the presentation of evidence. Before the closure of the presentation of evidence the presiding judge shall summon the accused and inform him about the conduct of the trial. If the accused continues to disturb order and insults the dignity of the court, the panel may again order that he be removed from the courtroom. In that case the trial shall be concluded in the accused ’ s absence and the presiding judge or another member of the panel shall inform him or her about the judgment adopted, in the presence of a typist. ...” Article 350 (former Article 336) “ 1. A judgment may refer only to the accused and the offence which are the subject of the indictment as initially submitted or as altered at the hearing. 2. The court is not bound by the prosecutor ’ s legal classification of the offence.” [1] Types of judgments Article 352 “ 1. A judgment shall dismiss the charges, acquit the accused or find him or her guilty. ... ” Article 354 “ A judgment acquitting the accused shall be adopted when : (1) the offence with which the accused is charged is not a criminal offence under the law; (2) there are circumstances that exclude the accused ’ s guilt; (3) it has not been proved that the accused committed the criminal offence with which he or she is charged .” Article 355 “1. A judgment finding the accused guilty shall contain the following details : (1) the offence of which the accused is found guilty, stating the facts and circumstances constituting the specific ingredients of a given criminal offence as well as those on which the application of a specific provision of the Criminal Code depends; (2) the statutory name and description of the criminal offence and the provisions of the Criminal Code which have been applied; (3) the sentence to be applied or whether, under the provisions of the Criminal Code, a sentence is not to be applied or imprisonment is to be substituted by community service; (4) any decision on suspended sentence; (5) any decision on security measures and confiscation of material gains; ... (7) the decision on costs and on any civil claim and whether a final judgment is to be published in the media. ... ” Article 367 “ 1. A grave breach of criminal procedure shall be found to exist where ... (3) a hearing has been held without a person whose presence is obligatory under the law ... ...” Reopening of proceedings Article 401 “Criminal proceedings concluded by a final ruling or a final judgment may be reopened at the request of an authorised person, only in the circumstances and under the conditions set out in this Code.” Article 406 “ 1. Criminal proceedings concluded by a final judgment dismissing the charges may exceptionally be reopened to the detriment of the accused: ... (5) where it has been established that amnesty, pardon, statutory limitation or other circumstances excluding criminal prosecution are not applicable to the criminal offence referred to in the judgment dismissing the charges. ... ” Article 408 “ 1. The court competent to decide upon a request for the reopening of the proceedings is the one which adjudicated the case at first instance ... 2. The request for reopening shall contain the statutory basis for reopening and evidence supporting the request ... ... ” Request for the protection of legality Article 418 “ 1. The State Attorney may lodge a request for the protection of legality against final judicial decisions and court proceedings preceding such decisions in which a law has been violated. 2. The State Attorney shall lodge a request for the protection of legality against a judicial decision adopted in proceedings in which fundamental human rights and freedoms guaranteed by the Constitution, statute or international law have been violated. ... ” Article 419 “ 1. The Supreme Court of the Republic of Croatia shall determine requests for the protection of legality. ... ” Article 420 “ 1. When determining a request for the protection of legality the [Supreme] Court shall assess only those violations of the law relied on by the State Attorney. ... ” Article 422 “ ... 2. Where a request for the protection of legality has been lodged to the detriment of the accused and the [Supreme] Court establishes that it is well founded, it shall merely establish that there has been a violation of the law, without altering a final decision.” 28. Under the Criminal Code ( Kazeni zakon, Offcial Gazette nos. 53/1991, 39/1992 and 91/1992) the circumstances excluding an individual ’ s guilt are lack of accountability ( neubrojivost ), error in law or error in fact. 29. The relevant part of the General Amnesty Act of 24 September 1996 (Official Gazette no. 80/1996, Zakon o općem oprostu ) reads as follows: Section 1 “This Act grants general amnesty from criminal prosecution and trial to the perpetrators of criminal offences committed during the aggression, armed rebellion or armed conflicts and in connection with the aggression, armed rebellion or armed conflicts in the Republic of Croatia. No amnesty shall apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph 1 of this section. Amnesty from criminal prosecution and trial shall apply to offences committed between 17 August 1990 and 23 August 1996.” Section 2 “No criminal prosecution or trial proceedings shall be instituted against the perpetrators of the criminal offences under section 1 of this Act. Where a criminal prosecution has already commenced it shall be discontinued and where trial proceedings have been instituted a court shall issue a ruling terminating the proceedings of its own motion. Where a person granted amnesty under paragraph 1 of this section has been detained, he or she shall be released.” Section 3 “No amnesty under section 1 of this Act shall be granted to perpetrators of the gravest breaches of humanitarian law which have the character of war crimes, namely the criminal offence of genocide under Article 119 of the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996); war crimes against the civilian population under Article 120; war crimes against the wounded and sick under Article 121; war crimes against prisoners of war under Article 122; organising groups [with the purpose of committing] or aiding and abetting genocide and war crimes under Article 123; unlawful killing and wounding of the enemy under Article 124; unlawful taking of possessions from the dead or wounded on the battleground under Article 125; use of unlawful means of combat under Article 126; offences against negotiators under Article 127; cruel treatment of the wounded, sick and prisoners of war under Article 128; unjustified delay in repatriation of prisoners of war under Article 129; destruction of the cultural and historical heritage under Article 130; inciting war of aggression under Article 131; abuse of international symbols under Article 132; racial and other discrimination under Article 133; establishing slavery and transferring slaves under Article 134; international terrorism under Article 135; putting at risk persons under international protection under Article 136; taking hostages under Article 137; and the criminal offence of terrorism under the provisions of international law. No amnesty shall be granted to perpetrators of other criminal offences under the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996) and the Criminal Code of the Republic of Croatia (Official Gazette no. 32/1993, consolidated text, nos. 38/1993, 28/1996 and 30/1996) which were not committed during the aggression, armed rebellion or armed conflicts and are not connected with the aggression, armed rebellion or armed conflicts in the Republic of Croatia. ...” Section 4 “A State Attorney may not lodge an appeal against a court decision under section 2 of this Act where the court granted amnesty in favour of the perpetrator of a criminal offence covered by this Act on the basis of the legal classification given to the offence by a State Attorney.” B. Relevant practice 1. Practice of the Constitutional Court 30. In its decision no. U-III/543/1999 of 26 November 2008 the Constitutional Court held, in so far as relevant, as follows: “6. The question before the Constitutional Court is whether there was a second trial concerning an event constituting the offence for which the General Amnesty Act was applied, and thus whether the proceedings concerned a ‘ same offence ’ in respect of which, under Article 31 § 2 of the Constitution, it is not possible to institute a new, separate and unrelated set of proceedings. Such proceedings would infringe [the principle of] legal certainty and permit multiple sanctions to be imposed for one and the same conduct which may be the subject of only one criminal sanction. In answering this question, the Constitutional Court should examine two issues: (a) the similarity between the descriptions of the events constituting the offences with which the appellant was charged in the first and second set of proceedings, in order to verify whether the decision on the application of amnesty and the final conviction in the subsequent proceedings concern the same subject, that is, the same ‘ criminal quantity ’, irrespective of whether they concern the same historical events; and after that ... (b) whether the case in issue concerns a situation in which it was not possible to bring fresh charges in relation to the facts already adjudicated in the first decisions of the courts (applying the amnesty), but in which, under Article 31 § 3 of the Constitution, it was possible to seek the reopening of the proceedings as provided for by the relevant law. Article 406 § 1 (5) of the Code of Criminal Procedure allows for the reopening of proceedings which were terminated by a final judgment dismissing the charges, where ‘ it has been established that amnesty, pardon, statutory limitation or other circumstances excluding criminal prosecution are not applicable to the criminal offence referred to in the judgment dismissing the charges ’. 6.1. The Constitutional Court can examine the similarity between the descriptions of the events constituting the offences only by reference to the normative standards. In so doing it is bound, just like the lower courts, by the constituent elements of the offences, irrespective of their legal classification. The descriptions of the events forming the basis for the charges in the judgment of the Bjelovar Military Court (no. K-85/95-24) and the Supreme Court (no. IKž-257/96), and the impugned judgments of the Sisak County Court (no. K-108/97) and the Supreme Court (no. I Kž-211/1998-3), undoubtedly suggest that they concern the same events, which were merely given different legal classifications. All the relevant facts had been established by the Bjelovar Military Court (which finally terminated the proceedings) and no other new facts were established in the subsequent proceedings before the Sisak County Court. The only difference in the description of the charges was in the time of the commission of the offences, which does not suggest that the events were different but rather that the courts were unable to establish the exact time of the offences. As regards the identical nature of the events, it is also relevant to note that the Supreme Court emphasised in the impugned judgment that the events were the same, so there is no doubt about this aspect. 6.2. In the impugned judgment the Supreme Court held that the conduct in issue constituted not only the offence of armed rebellion under Article 235 § 1 of the Criminal Code of the Republic of Croatia, in respect of which the judgment dismissing the charges was adopted, but also the offence of war crimes against the civilian population under Article 120 §§ 1 and 2 of the Basic Criminal Code of the Republic of Croatia, the offence of which [the appellant] was later convicted. It follows from this reasoning of the Supreme Court that the same conduct constituted the elements of two offences and that the situation was one of a single act constituting various offences. 6.3. The Constitutional Court finds that in the impugned judgment the Supreme Court erred in finding that the same perpetrator, after a final judgment had been adopted in respect of a single act constituting one offence, could be tried again in the new set of proceedings for the same act constituting another offence. Under Article 336 § 2 of the Code of Criminal Procedure the court is not bound by the prosecutor ’ s classification of the offence. The Bjelovar Military Court, if it considered that the facts underlying the charges constituted the offence of war crimes against the civilian population under Article 120 § 1 of the Basic Criminal Code of the Republic of Croatia, should therefore have found that it had no competence to determine the case (because it had no competence to try war crimes), and should have forwarded the case to the competent court, which could have convicted [the appellant] of the offence of war crimes against the civilian population, in respect of which no amnesty could be applied. Since the Bjelovar Military Court did not act in such a manner, it follows that, owing to the final nature of its judgment, the decision dismissing the charges became res judicata. The subsequent conviction in this case is a violation of the ne bis in idem rule, irrespective of the fact that the operative part of the first judgment did not concern ‘ the merits ’, sometimes understood simply as a resolution of the question whether the accused committed the offence or not. The formal distinction between an acquittal and a judgment dismissing the charges cannot be the only criterion for the resolution of the question whether a new and unrelated set of criminal proceedings may be instituted in respect of the same ‘ criminal quantity ’ : although it is contained in the judgment dismissing the charges, the decision on the application of amnesty, in the legal sense, creates the same legal consequences as an acquittal, and in both judgments a factual issue remains unproven. 6.4. Therefore the Constitutional Court cannot accept the reasoning of the Supreme Court ’ s judgment no. I Kž-211/1998-3 of 1 April 1999, according to which the judgment or ruling on the discontinuance of the proceedings for the offence of armed rebellion concerning the same event does not exclude the possibility of a subsequent prosecution and conviction for the offence of war crimes against the civilian population on the ground that the latter offence endangers not only the values of the Republic of Croatia but also humanity in general and international law. In any event, the Supreme Court later departed from that position in case no. I Kž-8/00-3 of 18 September 2002, finding that the judgment dismissing the charges ‘ without any doubt concerns the same event, in terms of the time, place and manner of commission; the event was simply given a different classification in the impugned judgment than in the ruling of the Zagreb Military Court ’. It also stated the following: ‘ When, as in the case in issue, the criminal proceedings have been discontinued in respect of the offence under Article 244 § 2 of the Criminal Code of the Republic of Croatia, and where the actions ... are identical to those of which [the accused] was found guilty in the impugned judgment ... under the ne bis in idem principle provided for in Article 32 § 2 of the Constitution, new criminal proceedings cannot be instituted because the matter has been adjudicated. ’ ... ” 31. Constitutional Court decision no. U-III-791/1997 of 14 March 2001 referred to a situation where the criminal proceedings against the accused had been terminated under the General Amnesty Act. Its relevant parts read as follows : “16. The provision of the Constitution which excludes the possibility of an accused being tried again for an offence of which he or she has already been ‘ finally acquitted or convicted in accordance with the law ’ refers exclusively to a situation where a judgment has been adopted in criminal proceedings which acquits the accused or finds him or her guilty of the charges brought against him or her in the indictment. ... 19. ... a ruling which does not finally acquit the accused but terminates the criminal proceedings cannot form the basis for application of the constitutional provisions concerning the prohibition on being tried or punished again ... ” 2. Practice of the Supreme Court 32. The relevant part of ruling no. I Kž-533/00-3 of 11 December 2001 reads as follows : “Under Article 336 § 2 of the Code of Criminal Procedure the court is not bound by the prosecutor ’ s legal classification of the offence, and it was therefore empowered to decide upon a different criminal offence since that offence is more favourable [ to the accused] ... ” 33. The relevant part of ruling no. I Kž 257/02-5 of 12 October 2005 reads as follows : “Since under Article 336 § 2 of the Code of Criminal Procedure the court is not bound by the prosecutor ’ s legal classification of the offence, and given that the possible sentence for the criminal offence of incitement to abuse of authority in financial affairs under Article 292 § 2 is more lenient than the possible sentence for the criminal offence under Article 337 § 4 of the Criminal Code, the first - instance court was empowered to classify the acts in question as the criminal offence under Article 292 § 2 of the Criminal Code ... ” 34. The relevant part of ruling no. I Kž 657/10-3 of 27 October 2010 reads as follows : “Even though the first - instance court correctly stated that a court is not bound by the prosecutor ’ s legal classification of the offence, the terms of the indictment were nevertheless exceeded because the first - instance court put the accused in a less favourable position by convicting him of two criminal offences instead of one ... ” III. RELEVANT INTERNATIONAL LAW MATERIALS A. The Vienna Convention of 1969 on the Law of Treaties 35. The relevant part of the Vienna Convention on the Law of Treaties of 23 May 1969 (“the Vienna Convention”) provides: Section 3. Interpretation of treaties Article 31 General rule of interpretation “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.” Article 32 Supplementary means of interpretation “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” Article 33 Interpretation of treaties authenticated in two or more languages “1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3. The terms of the treaty are presumed to have the same meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.” B. The Geneva Conventions of 1949 for the Protection of Victims of Armed Conflicts and their Additional Protocols 36. The relevant part of common Article 3 of the Geneva Conventions of 1949 reads: Article 3 “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. ...” 37. The relevant parts of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva, 12 August 1949 – hereinafter “the First Geneva Convention”) read: Chapter IX. Repression of Abuses and Infractions Article 49 “The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a ‘ prima facie ’ case. ...” Article 50 “Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” 38. Articles 50 and 51 of the Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva, 12 August 1949) contain the same text as Articles 49 and 50 of the First Geneva Convention. 39. Articles 129 and 130 of the Convention (III) relative to the Treatment of Prisoners of War (Geneva, 12 August 1949) contain the same text as Articles 49 and 50 of the First Geneva Convention. 40. Articles 146 and 147 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949) contain the same text as Articles 49 and 50 of the First Geneva Convention. 41. The relevant part of the Additional Protocol (II) to the Geneva Conventions, relating to the Protection of Victims of Non-International Armed Conflicts (Geneva, 8 June 1977) reads: Article 4 “1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors. 2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever: (a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; ...” Article 6 “ ... 5. At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.” Article 13 “1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this part, unless and for such time as they take a direct part in hostilities.” C. Convention on the Prevention and Punishment of the Crime of Genocide [2] 42. The relevant parts of this Convention read as follows: Article 1 “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” Article 4 “Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” Article 5 “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article 3.” D. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity [3] 43. The relevant part of this Convention reads as follows: Article I “No statutory limitation shall apply to the following crimes, irrespective of the date of their commission: (a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 ( I ) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the ‘ grave breaches ’ enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims; (b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.” Article II “If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.” Article III “The States Parties to the present Convention undertake to adopt all necessary domestic measures, legislative or otherwise, with a view to making possible the extradition, in accordance with international law, of the persons referred to in article II of this Convention.” Article IV “The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles I and II of this Convention and that, where they exist, such limitations shall be abolished.” E. Rome Statute of the International Criminal Court 44. Article 20 of the Statute reads: Ne bis in idem “1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.” F. Customary Rules of International Humanitarian Law 45. Mandated by the States convened at the 26th International Conference of the Red Cross and Red Crescent, the International Committee of the Red Cross (ICRC) presented in 2005 a Study on Customary International Humanitarian Law [4] (J.-M. Henckaerts and L. Doswald -Beck (eds.), Customary International Humanitarian Law, 2 Volumes, Cambridge University Press & ICRC, 2005). This Study contains a list of customary rules of international humanitarian law. Rule 159, which refers to non ‑ international armed conflicts, reads: “At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes.” G. United Nations Security Council Resolution on the situation in Croatia, 1120 (1997), 14 July 1997 46. The relevant part of the Resolution reads: “The Security Council, ... 7. Urges the Government of the Republic of Croatia to eliminate ambiguities in implementation of the Amnesty Law, and to implement it fairly and objectively in accordance with international standards, in particular by concluding all investigations of crimes covered by the amnesty and undertaking an immediate and comprehensive review with United Nations and local Serb participation of all charges outstanding against individuals for serious violations of international humanitarian law which are not covered by the amnesty in order to end proceedings against all individuals against whom there is insufficient evidence; ... ” H. The International Covenant on Civil and Political Rights 47. Article 7 of the International Covenant on Civil and Political Rights (ICCR) 1966 provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 § § 1 AND 3 OF THE CONVENTION 69. The applicant complained that the same judge had participated both in the proceedings terminated in 1997 and in those in which he had been found guilty in 2007. He further complained that he had been deprived of the right to give his closing arguments. He relied on Article 6 §§ 1 and 3 of the Convention, the relevant parts of which read as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” A. The Chamber ’ s conclusions 70. The Chamber observed that in both sets of criminal proceedings at issue judge M.K. had taken part at the first-instance stage. In the first set of proceedings the facts of the case had not been assessed, nor had the question of the applicant ’ s guilt been examined, and judge M.K. had not expressed an opinion on any aspect of the merits of the case. 71. Therefore, in the Chamber ’ s view, there was no indication of any lack of impartiality on the part of judge M.K. 72. As to the removal of the applicant from the courtroom, the Chamber held that, given that he had twice been warned not to interrupt the closing arguments presented by the prosecution and that his defence lawyer had remained in the courtroom and presented his closing arguments, the applicant ’ s removal had not violated his right to defend himself in person. B. The parties ’ submissions to the Grand Chamber 1. The applicant 73. The applicant argued that judge M.K., who had first adopted a ruling terminating the criminal proceedings against him on the basis of the General Amnesty Act and had then also participated in the criminal proceedings in which the applicant had been convicted of some of the same acts, could not be seen as impartial. 74. The applicant argued that after the hearing held on 19 March 2007 had been going on for several hours he had, owing to his mental illness and diabetes, been unable to control his reactions. However, there had been no physician present at the hearing to monitor his condition. While the State Attorney was presenting his closing arguments the applicant had said something incomprehensible, but had not insulted or interrupted the State Attorney. Contrary to the Government ’ s contention, he had not been warned twice by the presiding judge before being removed from the courtroom. He had not been asked back to the courtroom when his turn to present his closing arguments had come. The fact that his defence counsel had been able to present his closing arguments could not remedy the fact that the applicant himself had not been able to do so. The accused in criminal proceedings might confess or show remorse, which could be judged as mitigating factors, and a defence lawyer could not replace the accused in that respect. The trial court should have had the opportunity to hear his closing arguments from him in person. 2. The Government 75. The Government agreed that judge M.K. had participated in both sets of criminal proceedings against the applicant. As to the issue of subjective impartiality, the Government contended that the applicant had not adduced any evidence capable of rebutting the presumption of impartiality in respect of judge M.K. 76. As to the objective test of impartiality, the Government submitted that in the first set of proceedings neither the facts of the case nor the merits of the murder charges against the applicant had been assessed. Thus, judge M.K. had not in those proceedings expressed any opinion as to the applicant ’ s actions which could have prejudged his conduct in the second set of proceedings. Furthermore, the first set of proceedings had ended favourably for the applicant. Only in the second set of proceedings had a judgment been adopted on the merits involving an assessment of the facts of the case and the applicant ’ s guilt. In both sets of proceedings judge M.K. had participated only at first instance, and he had had no input regarding the examination of either of the cases at the appeal stage. 77. The Government submitted that the applicant had been informed of the charges and evidence against him. He had been represented by a legal ‑ aid defence lawyer throughout the proceedings, and whenever he had objected to the manner in which a lawyer was approaching the case the lawyer had been changed. The applicant and his lawyer had had ample opportunity to prepare his defence and to communicate confidentially. They had both been present at all the hearings and had had every opportunity to respond to the prosecution arguments. 78. As to the concluding hearing, the Government submitted that the applicant and his defence counsel had both been present at the beginning of the hearing. However, during the hearing the applicant had continually cursed and shouted. The presiding judge had warned him twice, and only when that had yielded no results had he ordered that the applicant be removed from the courtroom. 79. The removal of the applicant from the courtroom had thus been a measure of last resort by the presiding judge, designed to preserve order in the courtroom. 80. Had the applicant wanted to confess or show remorse, he had had ample opportunity to do so during the trial. 81. By the time the applicant had been removed from the courtroom all the evidence had already been presented. 82. Lastly, the applicant ’ s defence counsel had remained in the courtroom and had presented his closing arguments. 83. Against the above background, the Government argued that the applicant ’ s right to defend himself in person and through legal assistance had not been impaired. C. The Grand Chamber ’ s assessment 1. Impartiality of judge M.K. 84. The Chamber ’ s assessment, in so far as relevant, reads as follows : “ 43. The Court reiterates that there are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1: the first consists in seeking to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, Gautrin and Others v. France, § 58, 20 May 1998, Reports of Judgments and Decisions 1998-III). 44. As regards the subjective test, the Court first notes that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Wettstein v. Switzerland, no. 33958/96, § 43, ECHR 2000-XII). In the instant case, the Court is not convinced that there is sufficient evidence to establish that any personal bias was shown by judge M.K. when he sat as a member of the Osijek County Court which found the applicant guilty of war crimes against the civilian population and sentenced him to fourteen years ’ imprisonment. 45. As regards the objective test, it must be determined whether, quite apart from the judge ’ s conduct, there are ascertainable facts which may raise justified doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports 1996-III; Wettstein, cited above, § 44; and Micallef v. Malta, no. 17056/06, § 74, 15 January 2008). In this respect even appearances may be of a certain importance or, in other words, ‘ justice must not only be done, it must also be seen to be done ’ (see De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86; Mežnarić v. Croatia, no. 71615/01, § 32, 15 July 2005; and Micallef, cited above, § 75). 46. As to the present case, the Court notes that judge M.K. indeed participated both in the criminal proceedings conducted before the Osijek County Court under case number K-4/97 and in the criminal proceedings conducted against the applicant before the same court under case number K ‑ 33/06. The charges against the applicant in these two sets of proceedings overlapped to a certain extent (see § 66 below). 47. The Court further notes that both sets of proceedings were conducted at first instance, that is to say, at the trial stage. The first set of proceedings was terminated on the basis of the General Amnesty Act, since the trial court found that the charges against the applicant fell within the scope of the general amnesty. In those proceedings the facts of the case were not assessed, nor was the question of the applicant ’ s guilt examined. Thus, judge M.K. did not express an opinion on any aspect of the merits of the case.” 85. The mere fact that a trial judge has made previous decisions concerning the same offence cannot be held as in itself justifying fears as to his impartiality (see Hauschildt v. Denmark, 24 May 1989, § 50, Series A no. 154, and Romero Martin v. Spain ( dec. ), no. 32045/03, 12 June 2006 concerning pre-trial decisions; Ringeisen v. Austria, 16 July 1971, Series A no. 13, § 97; Diennet v. France, 26 September 1995, Series A no. 325 ‑ A, § 38; and Vaillant v. France, no. 30609/04, §§ 29-35, 18 December 2008, concerning the situation of judges to whom a case was remitted after a decision had been set aside or quashed by a higher court; Thomann v. Switzerland, 10 June 1996, §§ 35-36, Reports of Judgments and Decisions 1996 ‑ III, concerning the retrial of an accused convicted in absentia; and Craxi III v. Italy ( dec. ), no. 63226/00, 14 June 2001, and Ferrantelli and Santangelo v. Italy, 7 August 1996, § 59, Reports 1996 ‑ III, concerning the situation of judges having participated in proceedings against co-offenders). 86. No ground for legitimate suspicion of a lack of impartiality can be discerned in the fact that the same judge participates in adopting a decision at first instance and then in fresh proceedings when that decision is quashed and the case is returned to the same judge for re-consideration. It cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside a judicial decision is bound to send the case back to a differently composed panel (see Ringeisen, cited above, § 97). 87. In the present case the first decision was not set aside and the case remitted for retrial following an ordinary appeal; instead, a fresh indictment was brought against the applicant on some of the same charges. However, the Court considers that the principles set out in paragraph 85 are equally valid with regard to the situation which arose in the applicant ’ s case. The mere fact that judge M.K. participated both in the criminal proceedings conducted before the Osijek County Court under case number K-4/97 and in the criminal proceedings conducted against the applicant before the same court under case number K ‑ 33/06 should not in itself be seen as incompatible with the requirement of impartiality under Article 6 of the Convention. What is more, in the present case judge M.K. did not adopt a judgment in the first set of proceedings finding the applicant guilty or innocent and no evidence relevant for the determination of these issues was ever assessed (see paragraph 17 above). Judge M.K. was solely concerned with ascertaining whether the conditions for the application of the General Amnesty Act obtained in the applicant ’ s case. 88. The Court considers that in these circumstances there were no ascertainable facts which could give rise to any justified doubt as to M.K. ’ s impartiality, nor did the applicant have any legitimate reason to fear this. 89. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 6 § 1 of the Convention as regards the question of the impartiality of judge M.K. 2. Removal of the applicant from the courtroom 90. The Chamber made the following assessment of the applicant ’ s complaint : “ 50. The Court firstly observes that its task is not to resolve the dispute between the parties as to whether the Osijek County Court acted in accordance with the relevant provisions of the Croatian Code of Criminal Procedure when it removed the applicant from the courtroom during the concluding hearing. The Court ’ s task is rather to make an assessment as to whether, from the Convention point of view, the applicant ’ s defence rights were respected to a degree which satisfies the guarantees of a fair trial under Article 6 of the Convention. In this connection the Court reiterates at the outset that the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1 (see, among other authorities, Balliu v. Albania, no. 74727/01, § 25, 16 June 2005). On the whole, the Court is called upon to examine whether the criminal proceedings against the applicant, in their entirety, were fair (see, among other authorities, Imbrioscia v. Switzerland, 24 November 1993, Series A no. 275, § 38; S.N. v. Sweden, no. 34209/96, § 43, ECHR 2002-V; and Vanyan v. Russia, no. 53203/99, § 63-68, 15 December 2005). 51. The Court accepts that the closing arguments are an important stage of the trial, where the parties have their only opportunity to orally present their view of the entire case and all the evidence presented at trial and to give their assessment of the result of the trial. However, where the accused disturbs order in the courtroom the trial court cannot be expected to remain passive and to allow such behaviour. It is a normal duty of the trial panel to maintain order in the courtroom and the rules envisaged for that purpose apply equally to all present, including the accused. 52. In the present case the applicant was twice warned not to interrupt the closing arguments presented by the Osijek County Deputy State Attorney. Only afterwards, since he failed to comply, he was removed from the courtroom. However, his defence lawyer remained in the courtroom and presented his closing arguments. Therefore, the applicant was not prevented from making use of the opportunity to have the final view of the case given by his defence. In that connection the Court also notes that the applicant, who was legally represented throughout the proceedings, had ample opportunity to develop his defence strategy and to discuss with his defence lawyer the points for the closing arguments in advance of the concluding hearing. 53. Against this background, and viewing the proceedings as a whole, the Court considers that the removal of the applicant from the courtroom during the final hearing did not prejudice the applicant ’ s defence rights to a degree incompatible with the requirements of a fair trial. 54. Therefore, the Court considers that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention in this regard.” 91. The Grand Chamber endorses the Chamber ’ s reasons and finds that there has been no violation of Article 6 § § 1 and 3 (c) of the Convention as regards the applicant ’ s removal from the courtroom. II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 92. The applicant complained that the criminal offences which had been the subject of the proceedings terminated in 1997 and those of which he had been found guilty in 2007 were the same. He relied on Article 4 of Protocol No. 7 to the Convention, which reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” A. Compatibility ratione temporis 1. The Chamber ’ s conclusions 93. In its judgment of 13 November 2012 the Chamber found that the complaint under Article 4 of Protocol No. 7 to the Convention was compatible ratione temporis with the Convention. It held as follows: “ 58. The Court notes that the first set of criminal proceedings against the applicant did indeed end prior to the entry into force of the Convention in respect of Croatia. However, the second set of criminal proceedings in which the applicant was found guilty of war crimes against the civilian population was conducted and concluded after 5 November 1997, when Croatia ratified the Convention. The right not to be tried or punished twice cannot be excluded in respect of proceedings conducted before ratification where the person concerned was convicted of the same offence after ratification of the Convention. The mere fact that the first set of proceedings was concluded prior to that date cannot therefore preclude the Court from having temporal jurisdiction in the present case.” 2. The parties ’ submissions to the Grand Chamber 94. The Government submitted that the ruling granting the applicant amnesty had been adopted on 24 June 1997 and had been served on him on 2 July 1997, whereas the Convention had come into force in respect of Croatia on 5 November 1997. Therefore, the ruling in question lay outside the Court ’ s temporal jurisdiction. 95. The applicant made no submissions in that regard. 3. The Grand Chamber ’ s assessment 96. The ruling granting the applicant amnesty was adopted on 24 June 1997, whereas the Convention come into force in respect of Croatia on 5 November 1997 and Protocol No. 7 on 1 February 1998. Therefore, the issue of the Court ’ s competence ratione temporis has to be addressed. 97. The Grand Chamber endorses the findings of the Chamber as to the compatibility ratione temporis with the Convention of the applicant ’ s complaint under Article 4 of Protocol No. 7. It further points to the Commission ’ s reasoning in the case of Gradinger v. Austria ( 19 May 1994, opinion of the Commission, §§ 67-69, Series A no. 328-C ) : “ 67. The Commission recalls that, in accordance with the generally recognised rules of international law, the Convention and its Protocols are binding on the Contracting Parties only in respect of facts occurring after the entry into force of the Convention or the Protocol in respect of that party. 68. It is the nature of the right enunciated in Article 4 of Protocol No. 7 that two sets of proceedings must have taken place: a first set, in which the person concerned was ‘ finally acquitted or convicted ’, and thereafter a further set, in which a person was ‘ liable to be tried or convicted again ’ within the same jurisdiction. 69. The Commission further recalls that, in determining the fairness of proceedings, it is entitled to look at events prior to the entry into force of the Convention in respect of a State where the findings of those earlier events are incorporated in a judgment which is given after such entry into force ( see X v. Portugal, no. 9453/81, Commission decision of 13 December 1982, DR 31, p. 204. at p. 209). The essential element in Article 4 of Protocol No. 7 is the liability to be tried or punished ‘ again ’. The first set of proceedings merely provides the background against which the second set is to be determined. In the present case, the Commission finds that, provided the final decision in the second set of proceedings falls after the entry into force of Protocol No. 7, it may deal with the complaint ratione temporis. As Protocol No. 7 entered into force on 1 November 1988 and on 30 June 1989 Austria made a declaration under Article 7 § 2 of that Protocol which did not exclude retroactive effect ( see X v. France, no. 958 7/81, Commission decision of 13 December 1982, DR 29, p. 228, at p. 238), and the final decision of the Administrative Court is dated 29 March 1989, the Commission finds that it is not prevented ratione temporis from examining this aspect of the case.” 98. Accordingly, the Grand Chamber sees no reason to depart from the Chamber ’ s conclusion that the Government ’ s plea of inadmissibility on the ground of lack of jurisdiction ratione temporis must be dismissed. B. Applicability of Article 4 of Protocol No. 7 1. The Chamber ’ s conclusions 99. The Chamber concluded, firstly, that the offences for which the applicant had been tried in the first and second set of proceedings had been the same. It left open the question whether the ruling granting the applicant amnesty could be seen as a final conviction or acquittal for the purposes of Article 4 of Protocol No. 7 and proceeded to examine the complaint on the merits under the exceptions contained in paragraph 2 of Article 4 of Protocol No. 7. The Chamber agreed with the conclusions of the Supreme Court to the effect that the General Amnesty Act had been erroneously applied in the applicant ’ s case and found that the granting of amnesty in respect of acts that amounted to war crimes committed by the applicant represented a “fundamental defect” in those proceedings, which made it permissible for the applicant to be retried. 2. The parties ’ submissions to the Grand Chamber (a) The applicant 100. The applicant argued that the offences in the two sets of criminal proceedings against him had been factually the same and that the classification of the offences as war crimes in the second set of proceedings could not alter the fact that the charges were substantively identical. 101. He further contended that a ruling granting amnesty to the accused was a final decision which precluded a retrial. (b) The Government 102. In their written observations the Government argued that in the first set of proceedings the Osijek County Court had applied the General Amnesty Act without establishing the facts of the case and without deciding on the applicant ’ s guilt. The ruling thus adopted had never given an answer to the question whether the applicant had committed the crimes he had been charged with, nor had it examined the charges in the indictment. Therefore, that ruling did not have the quality of res judicata (see paragraph 33 of the Government ’ s observations ). However, they went on to state that it did fulfil all the requirements of res judicata and could be considered as a final acquittal or conviction within the meaning of Article 4 of Protocol No. 7. ( see the Government ’ s observations, paragraph 37). 103. The Government further contended, relying extensively on the Chamber ’ s findings, that no amnesty could be granted in respect of war crimes and that the granting of an amnesty had amounted to a fundamental defect in the proceedings. 104. After the first set of proceedings had been discontinued new facts had emerged, namely that the victims had been arrested and tortured before being killed. These new elements had been sufficient for the acts in issue to be classified as war crimes against the civilian population and not as “ordinary” murders. 105. The General Amnesty Act had been enacted with the purpose of meeting Croatia ’ s international commitments arising from the Agreement on the Normalization of Relations between the Federal Republic of Yugoslavia and the Republic of Croatia (23 August 1996), and its primary aim had been to promote reconciliation in Croatian society at a time of ongoing war. It explicitly excluded its application to war crimes. 106. In the applicant ’ s case the General Amnesty Act had been applied contrary to its purpose as well as contrary to Croatia ’ s international obligations, including those under Articles 2 and 3 of the Convention. 107. As to the procedures followed by the national authorities, the Government maintained that the proceedings against the applicant had been fair, without advancing any arguments as to whether the procedures were in accordance with the provisions of the Code of Criminal Procedure. (c) The third-party interveners 108. The group of academic experts maintained that no multilateral treaty expressly prohibited the granting of amnesties for international crimes. The interpretation of the International Committee of the Red Cross (ICRC) of Article 6 § 5 of the second Additional Protocol to the Geneva Conventions suggested that States might not grant amnesty to persons suspected of, accused of or sentenced for war crimes. However, an analysis of the travaux préparatoires of that Article showed that the only States which had referred to the question of perpetrators of international crimes, the former USSR and some of its satellite States, had linked that issue to that of foreign mercenaries. It was curious that the ICRC had interpreted Article 6 § 5 as excluding only war criminals and not perpetrators of other international crimes from its ambit, since the statements of the former USSR on which the ICRC relied had specifically provided for the prosecution of perpetrators of crimes against humanity and crimes against peace. It was difficult to see what arguments would justify the exclusion of war criminals but not of perpetrators of genocide and crimes against humanity from the potential scope of application of an amnesty. Furthermore, the ICRC referred to instances of non-international conflicts such as those in South Africa, Afghanistan, Sudan and Tajikistan. However, the amnesties associated with those conflicts had all included at least one international crime. 109. The interveners pointed to the difficulties in negotiating treaty clauses dealing with amnesty ( they referred to the 1998 Rome conference on the establishment of the International Criminal Court (ICC); the negotiations of the International Convention for the Protection of All Persons from Enforced Disappearance; and the 2012 Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels). The difficulties confirmed the lack of any consensus among States on that issue. 110. The interveners relied on a line of legal doctrine on amnesties [7] which argued that since the Second World War States had increasingly relied on amnesty laws. Although the number of new amnesty laws excluding international crimes had increased, so too had the number of amnesties including such crimes. Amnesties were the most frequently used form of transitional justice. The use of amnesties within peace accords between 1980 and 2006 had remained relatively stable. 111. Even though several international and regional courts had adopted the view that amnesties granted for international crimes were prohibited by international law, their authority was weakened by inconsistencies in those judicial pronouncements as to the extent of the prohibition and the crimes it covered. For example, while the Inter -American Court of Human Rights had adopted the position in the above-cited Barrios Altos case that all amnesty provisions were inadmissible because they were intended to prevent the investigation and punishment of those responsible for human rights violations, the President of that court and four other judges, in The Massacres of El Mozote and Nearby Places (cited above), had nuanced that position by accepting that even where gross violations of human rights were in issue, the requirement to prosecute was not absolute and had to be balanced against the requirements of peace and reconciliation in post-war situations. 112. Furthermore, a number of national Supreme Courts had upheld their countries ’ amnesty laws because such laws contributed to the achievement of peace, democracy and reconciliation. The interveners cited the following examples: the finding of the Spanish Supreme Court in the trial of Judge Garzón in February 2012; the ruling of the Ugandan Constitutional Court upholding the constitutionality of the 2000 Amnesty Act; the Brazilian Supreme Court ’ s ruling of April 2010 refusing to revoke the 1979 Amnesty Law; and the ruling of the South African Constitutional Court in the AZAPO case upholding the constitutionality of the Promotion of National Unity and Reconciliation Act of 1995 which provided for a broad application of amnesty. 113. The interveners accepted that the granting of amnesties might in certain instances lead to impunity for those responsible for the violation of fundamental human rights and thus undermine attempts to safeguard such rights. However, strong policy reasons supported acknowledging the possibility of the granting of amnesties where they represented the only way out of violent dictatorships and interminable conflicts. The interveners pleaded against a total ban on amnesties and for a more nuanced approach in addressing the issue of granting amnesties. 3. The Grand Chamber ’ s assessment (a) Whether the offences for which the applicant was prosecuted were the same 114. In Sergey Zolotukhin v. Russia, the Court took the view that Article 4 of Protocol No. 7 had to be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same ([GC], no. 14939/03, § 82, ECHR 2009). 115. In the present case the applicant was accused in both sets of proceedings of the following: (a) killing S.B. and V.B. and seriously wounding Sl.B. on 20 November 1991; (b) killing N.V. and Ne.V. on 10 December 1991. 116. Therefore, in so far as both sets of proceedings concerned the above charges, the applicant was prosecuted twice for the same offences. (b) The nature of the decisions adopted in the first set of proceedings 117. There are two distinct situations as regards the charges brought against the applicant in the first set of proceedings which were also preferred against him in the second set of proceedings. 118. Firstly, on 25 January 1996 the prosecutor withdrew the charges concerning the alleged killing of N.V. and Ne.V. on 10 December 1991 (see paragraphs 120 -21 below). 119. Secondly, the proceedings in respect of the alleged killing of S.B. and V.B. and the serious wounding of Sl.B. on 20 November 1991 were terminated by a ruling adopted by the Osijek County Court on 24 June 1997 on the basis of the General Amnesty Act (see paragraphs 122 et seq. below). ( i ) The withdrawal of charges by the prosecutor 120. The Court has already held that the discontinuance of criminal proceedings by a public prosecutor does not amount to either a conviction or an acquittal, and that therefore Article 4 of Protocol No. 7 finds no application in that situation (see Smirnova and Smirnova v. Russia ( dec. ), nos. 46133/99 and 48183/99, 3 October 2002, and Harutyunyan v. Armenia ( dec. ), no. 34334/04, 7 December 2006). 121. Thus, the discontinuance of the proceedings by the prosecutor concerning the killing of N.V. and Ne.V. does not fall under Article 4 of Protocol No. 7 to the Convention. It follows that this part of the complaint is incompatible ratione materiae. ( ii ) The discontinuance of the proceedings under the General Amnesty Act 122. As regards the remaining charges ( the killing of V.B. and S.B. and the serious wounding of Sl.B .), the first set of criminal proceedings against the applicant was terminated on the basis of the General Amnesty Act. 123. The Court shall start its assessment as regards the ruling of 24 June 1997 by establishing whether Article 4 of Protocol No. 7 applies at all in the specific circumstances of the present case, where the applicant was granted unconditional amnesty in respect of acts which amounted to grave breaches of fundamental human rights. ( α ) The position under the Convention 124. The Court notes that the allegations in the criminal proceedings against the applicant included the killing and serious wounding of civilians and thus involved their right to life protected under Article 2 of the Convention and, arguably, their rights under Article 3 of the Convention. In this connection the Court reiterates that Articles 2 and 3 rank as the most fundamental provisions in the Convention. They enshrine some of the basic values of the democratic societies making up the Council of Europe (see, among many other authorities, Andronicou and Constantinou v. Cyprus, 9 October 1997, § 171, Reports 1997-VI, and Solomou and Others v. Turkey, no. 36832/97, § 63, 24 June 2008). 125. The obligations to protect the right to life under Article 2 of the Convention and to ensure protection against ill-treatment under Article 3 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also require by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324, and Kaya v. Turkey, 19 February 1998, § 86, Reports 1998-I) or ill-treated (see, for example, El ‑ Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 182, ECHR 2012). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and to ensure the accountability of the perpetrators. 126. The Court has already held that, where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance that criminal proceedings and sentencing are not time-barred and that the granting of an amnesty or pardon should not be permissible (see Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004; Okkalı v. Turkey, no. 52067/99, § 76, ECHR 2006 -XII; and Yeşil and Sevim v. Turkey, no. 34738/04, § 38, 5 June 2007). It has considered in particular that the national authorities should not give the impression that they are willing to allow such treatment to go unpunished (see Egmez v. Cyprus, no. 30873/96, § 71, ECHR 2000-XII, and Turan Cakir v. Belgium, no. 44256/06, § 69, 10 March 2009). In its decision in the case of Ould Dah v. France (( dec. ), no. 13113/03, ECHR 2009) the Court held, referring also to the United Nations Human Rights Committee and the International Criminal Tribunal for the former Yugoslavia, that an amnesty was generally incompatible with the duty incumbent on States to investigate acts such as torture and that the obligation to prosecute criminals should not therefore be undermined by granting impunity to the perpetrator in the form of an amnesty law that might be considered contrary to international law. 127. The obligation of States to prosecute acts such as torture and intentional killings is thus well established in the Court ’ s case-law. The Court ’ s case-law affirms that granting amnesty in respect of the killing and ill-treatment of civilians would run contrary to the State ’ s obligations under Articles 2 and 3 of the Convention since it would hamper the investigation of such acts and necessarily lead to impunity for those responsible. Such a result would diminish the purpose of the protection guaranteed under Articles 2 and 3 of the Convention and render illusory the guarantees in respect of an individual ’ s right to life and the right not to be ill-treated. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others, cited above, § 146). 128. While the present case does not concern alleged violations of Articles 2 and 3 of the Convention, but of Article 4 of Protocol No. 7, the Court reiterates that the Convention and its Protocols must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between their various provisions (see Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X, and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 54, ECHR 2012). Therefore, the guarantees under Article 4 of Protocol No. 7 and States ’ obligations under Articles 2 and 3 of the Convention should be regarded as parts of a whole. ( β ) The position under international law 129. The Court should take into account developments in international law in this area. The Convention and its Protocols cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law of which they form part. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see Al- Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, ECHR 2008; Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008; Rantsev v. Cyprus and Russia, no. 25965/04, §§ 273-74, ECHR 2010; and Nada v. Switzerland [GC], no. 10593/08, § 169, ECHR 2012 ). 130. The Court notes the Chamber ’ s observations to the effect that “ [ g ] ranting amnesty in respect of ‘ international crimes ’ – which include crimes against humanity, war crimes and genocide – is increasingly considered to be prohibited by international law” and that “ [ t ] his understanding is drawn from customary rules of international humanitarian law, human rights treaties, as well as the decisions of international and regional courts and developing State practice, as there has been a growing tendency for international, regional and national courts to overturn general amnesties enacted by Governments”. 131. It should be observed that so far no international treaty explicitly prohibits the granting of amnesty in respect of grave breaches of fundamental human rights. While Article 6 § 5 of the second Additional Protocol to the Geneva Conventions, relating to the protection of victims of non-international conflicts, provides that “ [a] t the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict ... ”, the interpretation of the Inter-American Court of Human Rights of that provision excludes its application in respect of the perpetrators of war crimes and crimes against humanity (see paragraph 66 above, judgment in The Massacres of El Mozote and Nearby Places, § 286). The basis for such a conclusion, according to the Inter-American Court of Human Rights, is found in the obligations of the States under international law to investigate and prosecute war crimes. The Inter-American Court found that therefore “persons suspected or accused of having committed war crimes cannot be covered by an amnesty ”. The same obligation to investigate and prosecute exists as regards grave breaches of fundamental human rights and therefore the amnesties envisaged under Article 6 § 5 of the second Additional Protocol to the Geneva Conventions are likewise not applicable to such acts. 132. The possibility for a State to grant an amnesty in respect of grave breaches of human rights may be circumscribed by treaties to which the State is a party. There are several international conventions that provide for a duty to prosecute crimes defined therein (see the Geneva Conventions of 1949 for the Protection of Victims of Armed Conflicts and their Additional Protocols, in particular common Article 3 of the Geneva Conventions; Articles 49 and 50 of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Articles 50 and 51 of the Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Articles 129 and 130 of the Convention (III) relative to the Treatment of Prisoners of War; and Articles 146 and 147 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War. See also Articles 4 and 13 of the Additional Protocol (II) to the Geneva Conventions (1977), relating to the Protection of Victims of Non-International Armed Conflicts; Article 5 of the Convention on the Prevention and Punishment of the Crime of Genocide; and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ). 133. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity proscribes statutory limitations in respect of crimes against humanity and war crimes. 134. Various international bodies have issued resolutions, recommendations and comments concerning impunity and the granting of amnesty in respect of grave breaches of human rights, generally agreeing that amnesties should not be granted to those who have committed such violations of human rights and international humanitarian law (see paragraphs 45, 47-49, 51-53 and 56-58 above). 135. In their judgments, several international courts have held that amnesties are inadmissible when they are intended to prevent the investigation and punishment of those responsible for grave human rights violations or acts constituting crimes under international law (see paragraphs 5 4 and 5 9 - 6 8 above). 136. Although the wording of Article 4 of Protocol No. 7 restricts its application to the national level, it should be noted that the scope of some international instruments extends to retrial in a second State or before an international tribunal. For instance, Article 20 of the Rome Statute of the International Criminal Court contains an explicit exception to the ne bis in idem principle as it allows for prosecution where a person has already been acquitted in respect of the crime of genocide, crimes against humanity or war crimes if the purpose of the proceedings before the other court was to shield the person concerned from criminal responsibility for crimes within the jurisdiction of the International Criminal Court. 137. The Court notes the interveners ’ argument that there is no agreement among States at the international level when it comes to a ban on granting amnesties without exception for grave breaches of fundamental human rights, including those covered by Articles 2 and 3 of the Convention. The view was expressed that the granting of amnesties as a tool in ending prolonged conflicts may lead to positive outcomes (see the interveners ’ submissions summarised in paragraphs 1 08- 13 above). 138. The Court also notes the jurisprudence of the Inter-American Court of Human Rights, notably the above - cited cases of Barrios Altos, Gomes Lund et al. , Gelman and The Massacres of El Mozote and Nearby Places, where that court took a firmer stance and, relying on its previous findings, as well as those of the Inter-American Commission on Human Rights, the organs of the United Nations and other universal and regional organs for the protection of human rights, found that no amnesties were acceptable in connection with grave breaches of fundamental human rights since any such amnesty would seriously undermine the States ’ duty to investigate and punish the perpetrators of such acts (see Gelman, § 195, and Gomes Lund et al. , § 171, both cited above ). It emphasised that such amnesties contravene irrevocable rights recognised by international human rights law (see Gomes Lund et al. , § 171 ). ( γ ) The Court ’ s conclusion 139. In the present case the applicant was granted amnesty for acts which amounted to grave breaches of fundamental human rights such as the intentional killing of civilians and inflicting grave bodily injury on a child, and the County Court ’ s reasoning referred to the applicant ’ s merits as a military officer. A growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights. Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/ or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances. 140. The Court considers that by bringing a fresh indictment against the applicant and convicting him of war crimes against the civilian population, the Croatian authorities acted in compliance with the requirements of Articles 2 and 3 of the Convention and in a manner consistent with the requirements and recommendations of the above-mentioned international mechanisms and instruments. 141. Against the above background, the Court concludes that Article 4 of Protocol No. 7 to the Convention is not applicable in the circumstances of the present case. | The Court held that Article 4 of Protocol No. 7 was not applicable in respect of the charges relating to the offences which had been the subject of proceedings against the applicant terminated in 1997 in application of the General Amnesty Act. It noted in particular that there was a growing tendency in international law to see the granting of amnesties in respect of grave breaches of human rights as unacceptable and found that by bringing a new indictment against the applicant and convicting him of war crimes against the civilian population, the Croatian authorities had acted in compliance with the requirements of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention and consistent with the recommendations of various international bodies. |
752 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 18. The relevant provisions of the Constitution read as follows: Article 24 § 1 “The State is under a duty to protect the natural and cultural environment. It shall adopt special preventive or repressive measures for the conservation of the environment. Matters pertaining to the protection of forests and forest areas in general shall be regulated by law. Any change in the use of public forests and public forest areas shall be prohibited, except where agricultural development or any other use is beneficial to the national economy or dictated by the national interest.” Article 117 § 3 “Public or private forests or forest areas which have been or are destroyed by fire or otherwise deforested, shall not be divested for that reason of their previous status but shall be designated as reafforestation areas and not used for any other purpose.” 19. The Government submitted that, for the purposes of Article 117 § 3, which under the Supreme Administrative Court ’s established case-law is directly applicable, the statutory protection of forests continues without any limitation in time and notwithstanding illegal destruction or deforestation. Moreover, the designation of an area as a reafforestation area and the prohibition of any use detrimental to reafforestation are not left to the discretion of the authorities but are mandatory. B. The Protection of Forests and Forest Lands Act (Law no. 998/1979) 20. The relevant sections of Law no. 998/1979 read as follows: Section 10(3) “A Forest Disputes Resolution Committee shall be established at the seat of each prefecture with jurisdiction to settle disputes over the classification of all or part of an area as forest land and over the limits of such land.” Section 14 “(1) If no forest register has been compiled, the classification of all or part of an area as forest land and the determination of the limits thereof ... shall be carried out, at the request of any person having a lawful interest or ex officio, by the competent forestry commission. (2) ... The classification shall be notified to the person, legal entity or public service having submitted the request ... (3) The prefect or any other person with a lawful interest may lodge an objection to the aforementioned classification within two months from the date of notification ... with the Committee mentioned in section 10(3) ... The Committee and the Appeal Board ... shall decide the objection by a reasoned decision within three months from the date it is filed ...” Section 38(1) “Forests and forest lands which are destroyed or deforested by fire or illegal logging shall be designated reafforestation areas, regardless of any special category they may come into or their location ...” Section 41 “(1) The decision to designate land as a reafforestation area shall be taken by the competent prefect. It shall clearly indicate the limits of the area and be accompanied by a plan ... (3) ... the decision of the prefect mentioned in subsection (1) shall be taken following a recommendation by the competent forestry inspector.” 21. The Government stressed that the aforementioned provisions establish a special judicial procedure for classifying an area as forest land and aim at settling disputes in a way that binds both the authorities and the individual. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 22. The applicants alleged a violation of Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 23. Firstly, as they had already stressed in their observations at the admissibility stage, the applicants reiterated that the fact that the Government had not expressed any views on the substance of their complaint at that stage amounted to an indirect but clear recognition that there had been a violation. 24. Secondly, the applicants submitted that the taking of what they considered their property by the national and regional authorities amounted to a de facto expropriation without the payment of any compensation. In effect, by using various pretexts such as the existence of a forest in the remote past, the State had tried to “snatch” their property. Even if it was considered that the State had not deprived the applicants of their property, but had only restricted its use, it had not struck a fair balance between the right guaranteed by Article 1 of Protocol No. 1 and the limitation: in the present case no public interest could justify such a limitation being placed on the property concerned and the lack of any compensation which might have restored a fair balance. In that connection, the applicants stressed that under Law no. 998/1979, the State could purchase properties that were included in a reafforestation scheme. The applicants had submitted a request to have their properties purchased but the competent authorities had never replied, thereby confirming the State’s refusal to pay the applicants any compensation. 25. The applicants produced a large number of judicial decisions (judgments no. 8864/1995 of the Athens Court of First Instance, no. 8314/1996 of the Athens Court of Appeal, and no. 9632/2000 of the Athens Court of Appeal) in which the Greek courts had decided the property status of the Veikou Estate. It transpired from those decisions that the courts had recognised that a number of parcels situated in the greater Veikou Estate did not constitute forest land but were private properties which were included in the city development plan. Other judicial decisions (judgments no. 13789/1977 of the Athens Court of First Instance, no. 7350/1978 of the Athens Court of Appeal, no. 696/1980 of the Court of Cassation, no. 1865/1992 of the Athens Court of First Instance, and no. 1783/1997 of the Athens Court of First Instance) had concluded that the greater area comprised by the applicants’ properties had never been a forest in the past. 26. The applicants stressed that the administrative authorities which decided on reafforestation had referred to the area as a public domain and totally ignored the judicial decisions which were favourable to the applicants. The applicants further claimed that the disputed area could not constitute a forest because of the nature and composition of the topsoil and subsoil. Such a conclusion could be drawn from a series of technical reports and expert valuations that had been carried out in 1993, 1995, 1996, 1997 and 2000 by foresters and even university professors and experts in geology and forestry. Furthermore, certain administrative documents or decisions (a Ministry of Agriculture forest map, a presidential decree of 28 August 1980 laying down building regulations for the area, a presidential decree of 11 November 1991 approving the development plan for the Galatsi area and an opinion of the Athens Forestry Commission of 14 November 1968) lent support to the view that the disputed land had always been considered as grazing or arable land. Moreover, in 1957 the authorities had delimited the forest land in the area without including in it the disputed plots. 27. In conclusion, the applicants maintained that no public interest could justify such a drastic limitation of their property rights, taking into account that any reafforestation of the land was impossible because of the type and quality of the soil. 28. The principal thrust of the Government’s argument was that no “possession” of the applicants, within the meaning of Article 1 of Protocol No. 1, had been interfered with. The Government considered that the State was the owner of the greater Veikou Estate and that only the Greek courts were competent to resolve the ownership status of the disputed plots. 29. The mere allegation by the applicants that they owned those plots, which were not precisely delineated in their application, did not prove that they did. In an attempt to prove their ownership rights over the disputed land, the applicants had relied on judicial decisions and administrative documents which concerned other properties (both as regards ownership of the land and its classification as forest land) and tried to use the European Court of Human Rights as a civil court which could resolve the issue of ownership of their plots or determine whether the disputed land had formed a forest in the past. However, no decision had been taken by the domestic courts as regards ownership of the applicants’ plots. The Supreme Administrative Court had only examined whether the conditions for designating the land as a reafforestation area were met, in particular whether the prefect’s decision was lawful and sufficiently justified under Article 117 § 3 of the Constitution and the provisions of Law no. 998/1979. The determination of the ownership of the whole Veikou Estate was still pending before the domestic courts, as several actions had been brought (under Article 70 of the Code of Civil Procedure) claiming ownership of certain parcels. However, the applicants were not among the claimants. 30. The Government added that neither the judgment of the Supreme Administrative Court nor the prefect’s decision to reafforest had violated the applicants’ rights under Article 1 of Protocol No. 1. In deciding the admissibility of the complaint under Article 6 of the Convention, the Court had held that the Supreme Administrative Court ’s finding that the prefect’s decision was not an operative act was not arbitrary. Furthermore, under Article 117 of the Constitution, the protection of forests was guaranteed without any limitation in time and notwithstanding any illegal destruction or deforestation. The decision to reafforest was not left to the discretion of the authorities but had to be taken when necessary and when the conditions laid down in Article 117 were met. The Supreme Administrative Court had found, on the basis of a large amount of evidence, that it was probable that the disputed area had been a forest in the past. It followed that the prefect’s decision was not arbitrary but dictated by reasons of public interest, namely the protection of the environment. 31. The Government contested the relevance of the documents which the applicants had produced in support of their case. They referred to other documents issued by the Athens Forestry Commission and to decision no. 1/2001 of the Forest Disputes Appeal Board, in which different conclusions had been drawn from those indicated in the applicants’ documents. 32. Finally, the Government maintained that it was impossible for the State to purchase the disputed plots under the provisions of Law no. 998/1979, since it had always considered them to be its own property. 33. The Court reiterates that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37). The first, which is set out in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule. 34. As regards the question whether there is a “possession” within the meaning of Article 1 of Protocol No. 1, it is not for the Court to settle the issue of ownership of the disputed land. The Government have underlined that the applicants failed to have ownership determined by the civil courts. The Court notes that the Government raised the objection that domestic remedies had not been exhausted on that point at the admissibility stage. The Court dismissed it on the ground that for the purposes of admissibility the only court with jurisdiction to quash the prefect’s decision to reafforest was the Supreme Administrative Court. As regards the merits, the Court notes the following: in their application to the Supreme Administrative Court, the applicants indicated the deeds on which they based their claim to ownership of the disputed land. Although it was not called upon to determine the issue of ownership, and indeed could not do so, the Supreme Administrative Court accepted that the applicants, who “were considered owners”, had locus standi. 35. For the purposes of the proceedings before the Court, the applicants may therefore be regarded as the owners of the land in issue or at least as having an interest that would normally be protected by Article 1 of Protocol No. 1. 36. The Court takes note of the Government’s arguments that the protection of forests is guaranteed without limitation in time and notwithstanding illegal destruction or deforestation. Moreover, the designation of an area as an area to be reafforested and the prohibition of any use that would prevent reafforestation is not left to the discretion of the authorities but is mandatory and the Supreme Administrative Court has scrupulously enforced these principles in order to safeguard the country’s forestry resources. The Court also notes that the applicants dispute that the prefect’s decision to reafforest in the present case was taken in the public interest, because the geology of the whole area was not suitable for forestation. The Court notes that there is a large amount of conflicting evidence as to the nature of the land in issue. As both parties have pointed out, there were judicial and administrative decisions, expert valuations and other documents that could be used to support their cases. However, it is not for the Court to decide such a technical matter. 37. The Court notes that the prefect’s decision of 10 October 1994 was based on decision no. 108424/1934 of the Minister of Agriculture. In the Court’s opinion, the authorities were at fault for ordering such a serious measure that affected the position of the applicants and a number of other persons who claimed property rights over the land without a fresh reassessment of the situation as depicted in decision no. 108424/1934. However, the Supreme Administrative Court rejected the applicants’ application on the sole ground that the prefect’s decision was not an operative one, since it simply confirmed the decision that had been issued by the Minister of Agriculture in 1934. Such a manner of proceeding in such a complex situation in which any administrative decision could weigh heavily on the property rights of a large number of people cannot be considered consistent with the right enshrined in Article 1 of Protocol No. 1 and does not provide adequate protection to people such as the applicants who bona fide possess or own property, in particular, when it is borne in mind that there is no possibility of obtaining compensation under Greek law. 38. The Court considers that the situation of which the applicants complain comes within the first sentence of the first paragraph of Article 1 of Protocol No. 1 and that there was no reasonable balance struck between the public interest and the requirements of the protection of the applicants’ rights. 39. Accordingly, there has been a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 41. For pecuniary damage the applicants claimed 504,482,000 drachmas (GRD), or 1,480,505 euros (EUR). This amount is based on an expert valuation carried out by a civil engineer appointed by the applicants to assess the value of all the disputed plots. The expert based the assessment on the market value of the neighbouring properties and on a judgment of the Athens Court of First instance which determined the amount payable per square metre in compensation for property expropriated for the purposes of holding the Olympic Games in 2004. 42. As regards non-pecuniary damage the applicants said that a judgment of the Court holding that there has been a violation of Article 1 of Protocol No. 1 would constitute sufficient just satisfaction and they claimed a token compensation of one euro. They affirmed that the interference of the State with their properties had caused them distress and anxiety and that the predicament in which they had found themselves was quite serious, as most of them had purchased the properties at a very high cost at the time with limited resources. 43. As regards costs and expenses for the proceedings before the Supreme Administrative Court, the applicants claimed GRD 200,000 per expropriated plot, that is a total of GRD 4,800,000, or EUR 14,087. As to the proceedings before the Court the applicants underlined the complexity of the case and the fact that they had had to retain two lawyers, who had spent 980 hours working on the file at an hourly rate of GRD 50,000 (total: GRD 49,000,000, or EUR 143,800). To that sum should be added an amount of GRD 1,000,000 for various secretarial expenses and of GRD 1,000,000 for the fees of the civil engineer who had assessed the value of applicants’ properties. 44. The Government submitted that the applicants had no right to compensation: on the one hand, they had not been recognised as owners of the disputed plots by the civil courts and, on the other, the decision to reafforest did not prohibit all uses of the land but only uses that would hinder reafforestation and were inconsistent with the designation of the plots as forest land. The Government reiterated that they contested the exact location and surface area of the plots. 45. The Government submitted that the applicants’ claims for costs were exaggerated and arbitrary. In particular, the number of hours worked and the hourly rate indicated by their lawyers were excessive. 46. In the circumstances of the case, the Court considers that the question of the application of Article 41 is not ready for decision and must be reserved, due regard being had to the possibility of an agreement between the respondent State and the applicant. | The Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention, finding that a reasonable balance had not been struck between the public interest and the requirements of the protection of the applicants’ rights. It considered in particular that the authorities were wrong to have ordered the reforestation measure without first assessing how the situation had evolved since 1934. In dismissing the applicants’ appeal on the sole ground that the prefect’s decision had merely confirmed an earlier decision, the Council of State had failed to protect the property owners’ rights adequately, especially as there had been no possibility of obtaining compensation under Greek law. |
1,005 | Military intervention exercising effective control | II. RELEVANT DOMESTIC LAW AND PRACTICE 20. The relevant provisions of the Italian Constitution are as follows : Article 10 § 1 “ The Italian legal system shall comply with the generally recognised rules of international law. ... ” Article 24 § 1 “ Everyone may bring legal proceedings to protect his or her rights and legitimate interests. ... ” Article 28 “ Civil servants, other agents of the State and public entities shall be directly responsible, in accordance with the criminal, civil and administrative law, for acts committed in breach of rights. In connection with such acts, civil liability shall extend to the State and public entities. ... ” Article 113 “ Judicial protection of rights and legitimate interests in the ordinary and administrative courts shall always lie against acts of the public administrative authorities. It may not be excluded or limited to extraordinary remedies or specific categories of act. The law shall specify which judicial bodies are empowered to set aside acts of the public authorities, in what cases and with what effects.” 21. Article 31 of Royal Decree no. 1024 of 26 June 1924 provides : “ No appeal to the Consiglio di Stato, sitting in its judicial capacity, shall lie against acts or decisions of the government which involve the exercise of political power.” 22. Article 2043 of the Civil Code provides: “Any unlawful act which causes damage to another will render the perpetrator liable in damages under the civil law.” 23. Article 41 of the Code of Civil Procedure, which deals with the issue of jurisdiction, provides: “For so long as there has been no determination of the merits of the proceedings at first instance, any party may seek a ruling on a question of jurisdiction under Article 37 from the Court of Cassation, sitting as a full court. ...” Article 37 of the Code of Civil Procedure provides: “A ruling that an ordinary court has no jurisdiction because the case concerns a public authority or is within the province of a special court may be made at any time and at any level of jurisdiction, including by the court of its own motion.” 24. The relevant provisions of the Criminal Code provide: Article 6 “Anyone who commits an offence on the territory of the State shall be punished in accordance with Italian law. The offence will be regarded as having been committed on the territory of the State if all or part of the act or omission at the origin of the offence or all or some of the consequences of such act or omission occurred there.” Article 185 “Restitution and compensation for damage. The commission of an offence shall give rise to an obligation of restitution under the civil law [Articles 2043 et seq. of the Civil Code]. Any offence that causes pecuniary damage [Article 2056 of the Civil Code] or non-pecuniary damage [Article 2059 of the Civil Code] shall impose an obligation on the perpetrator and those accountable for his or her actions under the civil law [Article 2047 of the Civil Code] to make reparation.” 25. Article 174 of the Wartime Military Criminal Code reads as follows: “A commanding officer of a military force who, in order to inflict damage on the enemy, orders or authorises the use of a means or method of warfare that is prohibited by law or by international treaty or which is in any event contrary to the military code of honour shall be liable on conviction to a minimum of five years ’ imprisonment unless the act concerned is a criminal offence under a specific statutory provision. If the act results in a massacre, the minimum term of imprisonment shall be ten years.” 26. In a judgment of 10 July 1992 (no. 124/1993), the Court of Cassation, sitting as a full court, established the rule that the courts had no jurisdiction to hear cases against the authorities relating to political acts. A trade union had brought an action against the Prime Minister, the Civil Service Ministry and the Ministry of State Education on the ground that the government had failed to comply with their undertakings. The Court of Cassation noted, inter alia, that such a failure could only engage the government ’ s political responsibility, but could not create a right. It ruled that the courts had no jurisdiction to hear the case after formulating the following principle: “Legislative action is a political act since it is the standard means of performing political and governmental functions. The governmental authority ’ s conduct in the present case was not, therefore, capable in law of causing individuals damage (whether to their personal rights or to their legitimate interests); it consequently escapes all judicial scrutiny.” 27. The Italian courts had in fact already examined this question in a number of earlier cases and had ruled that, as they were political in nature, the following acts escaped the scrutiny of the domestic courts: (i) a waiver of the right to exercise jurisdiction under Article VII of the Agreement of 1951 between the Parties to the North Atlantic Treaty regarding the Status of their Forces (Court of Cassation, Third Criminal Division, 21 March 1962, no. 1645, Kinardi and Others, Giust. Pen. [Criminal Justice], 1963, III, p. 80); (ii) the assignment of property belonging to Italian nationals under the London Convention of 1951 (Court of Cassation, sitting as a full court, 12 July 1968, no. 2452, De Langlade v. the Treasury, Rivista diritto internazionale [ International Law Review ], 1969, p. 583); (iii) a Transport Ministry decree suspending permission to transport goods to Austria (Rome District Court, 18 May 1993, Soc. S. and C. Transp. GmbH v. Ministry of Transport, Rivista diritto internazionale privato e processuale [ Review of Private International Law and Procedure ], 1995, p. 755); (iv) a decision by the Ministry of Employment appointing employees ’ representatives as delegates to the International Labour Organisation (Lazio Regional Administrative Court, 20 August 1976, no. 492, CISNAL v. Ministry of Employment and Ministry of Foreign Affairs, Italian Yearbook of International Law, 1978-79, p. 184); (v) a declaration of war and treaty provisions relating to compensation for war damage ( Lazio Regional Administrative Court (I), 28 January 1985, no. 106, Pestalozza v. the Treasury, Trib. Amm. Reg. [ Regional Administrative Court Review ], 1985, p. 38 1). 28. The full court of the Court of Cassation delivered a further judgment (no. 5044) on 11 March 2004. It concerned the jurisdiction of the Italian civil courts to hear claims for compensation for damage sustained by a person who had been captured by the German military in 1944 and deported to work for German industry. Germany had pleaded State immunity and the courts of first instance and appeal had held that they had no jurisdiction to make an order against it. The Court of Cassation carried out a very extensive examination of the international treaties on international crime, imprescriptibility, the international responsibility of States, immunity from jurisdiction and of the case-law of various international tribunals. In holding that the immunity plea failed and the Italian courts had to decide the claim, it stated inter alia : “ ... In a decision no. 8157 of 5 June 2002, this full court did indeed rule that acts performed by the State in the conduct of hostilities escape all scrutiny by the courts, as they are acts through which ‘ political ’ functions are carried out. The nature of these functions ‘ precludes any claim to a protected interest in respect thereto, so that there may or may not be a specific content to the acts through which they are performed ’. Pursuant to this principle, the Italian courts were held to have no jurisdiction to hear a claim against the Italian Prime Minister ’ s Office and the Italian Ministry of Defence for compensation for the destruction of a non-military objective during NATO air strikes against the Federal Republic of Yugoslavia or for the resultant civilian deaths. It is readily apparent, however, firstly, that the fact that the court cannot contest the manner in which the actions of the supreme head of the res publica are conducted does not prevent it from finding that a criminal offence has been committed or that there is related liability under the criminal or civil law (Articles 90 and 96 of the Constitution; section 15 of Constitutional Law no. 1 of 1953; and section 30 of Law no. 20 of 1962); secondly, by virtue of the principle of adaptation established by Article 10 § 1 of the Constitution, the ‘ generally recognised ’ principles of international law which govern the fundamental values constituted by the freedom and dignity of the human being and characterise the most serious assaults upon the integrity of those values as ‘ international crimes ’ have ‘ automatically ’ been integrated into our system and are entirely apt for use as a standard whereby the injustice of damage caused to others by intentional or negligent ‘ acts ’ may be gauged. It is evident, therefore, that the principles referred to in this decision cannot be taken into consideration in the instant case. ... 9.1 Granting immunity from jurisdiction to States who have been guilty of such wrongdoing is in manifest contradiction with the aforementioned normative rules because it constitutes an obstacle to the defence of values whose protection, like these norms and principles, must on the contrary be considered essential for the entire international community, even to the point of justifying forms of mandatory response in the most serious cases. Nor is there any doubt that the antinomy must be resolved by giving priority to the highest ranking norms, as the judges in the minority (eight to nine) stated in their dissenting opinion appended to the judgment in Al-Adsani [ v. the United Kingdom [GC], no. 3 5763/97, ECHR 2001-XI], by precluding in such cases any claim by the State to immunity from suit in the foreign courts.” 29. In 1993 the Italian government decided to send a military expeditionary force to Somalia to perform peacekeeping operations. After the expeditionary force had returned to Italy, it was discovered that some of its members had engaged in the torture of Somali prisoners. Two members of the expedition were charged and given prison sentences. They were also ordered to pay compensation to the civil party. In judgment no. 28154 of 7 March 2002, the text of which was deposited with the registry on 10 July 2002, the Rome Civil Court ordered another Italian serviceman and the Ministry of Defence to make reparation for the damage sustained by the relatives of a civilian whom the serviceman had killed unlawfully. III. OTHER RELEVANT PROVISIONS 30. The applicants relied in the domestic courts on the Protocol Additional of 8 June 1977 to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I). The Protocol, which Italy ratified through Law no. 672 of 11 December 1985, contains, inter alia, the following provisions: Article 35 – Basic rules “ 1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. ... ” Article 48 – Basic rule “ In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. ” Article 49 – Definition of attacks and scope of application “ 1. ’ Attacks ’ means acts of violence against the adversary, whether in offence or in defence. 2. The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party. 3. The provisions of this section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air. 4. The provisions of this section are additional to the rules concerning humanitarian protection contained in the Fourth Convention, particularly in Part II thereof, and in other international agreements binding upon the High Contracting Parties, as well as to other rules of international law relating to the protection of civilians and civilian objects on land, at sea or in the air against the effects of hostilities. ” Article 51 – Protection of the civilian population “ 1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities. 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 5. Among others, the following types of attacks are to be considered as indiscriminate: (a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 6. Attacks against the civilian population or civilians by way of reprisals are prohibited. 7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations. 8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57. ... ” Article 52 – General Protection of civilian objects “ 1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. 2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. 3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. ... ” Article 57 – Precautions in attack “ 1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. 2. With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: (i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them; (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects; (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit. 3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. 4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects. 5. No provision of this Article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects. ... ” Article 91 – Responsibility “ A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. ” 31. The applicants also relied in the domestic courts on paragraph 5 of Article VIII of the London Convention of 19 June 1951 between the Parties to the North Atlantic Treaty regarding the Status of their Forces [1], which Italy ratified through Law no. 1335 of 1955. Article I defines certain terms as follows: “ ... (d) ’ sending State ’ means the Contracting Party to which the force belongs; (e) ’ receiving State ’ means the Contracting Party in the territory of which the force or civilian component is located, whether it be stationed there or passing in transit; ... ” Article VIII provides, inter alia : “ ... 5. Claims (other than contractual claims and those to which paragraphs 6 or 7 of this Article apply) arising out of acts or omissions of members of a force or civilian component done in the performance of official duty, or out of any other act, omission or occurrence for which a force or civilian component is legally responsible, and causing damage in the territory of the receiving State to third parties, other than any of the Contracting Parties, shall be dealt with by the receiving State in accordance with the following provisions: (a) Claims shall be filed, considered and settled or adjudicated in accordance with the laws and regulations of the receiving State with respect to claims arising from the activities of its own armed forces. (b) The receiving State may settle any such claims, and payment of the amount agreed upon or determinated by adjudication shall be made by the receiving State in its currency. (c) Such payment, whether made pursuant to a settlement or to adjudication of the case by a competent tribunal of the receiving State, or the final adjudication by such a tribunal denying payment, shall be binding and conclusive upon the Contracting Parties. (d) Every claim paid by the receiving State shall be communicated to the sending States concerned together with full particulars and a proposed distribution in conformity with sub-paragraphs ( e ) (i), (ii) and (iii) below. In default of a reply within two months, the proposed distribution shall be regarded as accepted. (e) The cost incurred in satisfying claims pursuant to the preceding sub-paragraphs and paragraph 2 of this Article shall be distributed between the Contracting Parties, as follows: (i) Where one sending State alone is responsible, the amount awarded or adjudged shall be distributed in the proportion of 25 per cent chargeable to the receiving State and 75 per cent chargeable to the sending State. (ii) Where more than one State is responsible for the damage, the amount awarded or adjudged shall be distributed equally among them: however, if the receiving State is not one of the States responsible, its contribution shall be half that of each of the sending States. (iii) Where the damage was caused by the armed services of the Contracting Parties and it is not possible to attribute it specifically to one or more of those armed services, the amount awarded or adjudged shall be distributed equally among the Contracting Parties concerned: however, if the receiving State is not one of the States by whose armed services the damage was caused, its contribution shall be half that of each of the sending States concerned. (iv) Every half-year, a statement of the sums paid by the receiving State in the course of the half-yearly period in respect of every case regarding which the proposed distribution on a percentage basis has been accepted, shall be sent to the sending States concerned, together with a request for reimbursement. Such reimbursement shall be made within the shortest possible time, in the currency of the receiving State. (f) In cases where the application of the provisions of sub-paragraphs ( b ) and ( e ) of this paragraph would cause a Contracting Party serious hardship, it may request the North Atlantic Council to arrange a settlement of a different nature. (g) A member of a force or civilian component shall not be subject to any proceedings for the enforcement of any judgment given against him in the receiving State in a matter arising from the performance of his official duties. (h) Except in so far as sub-paragraph ( e ) of this paragraph applies to claims covered by paragraph 2 of this Article, the provisions of this paragraph shall not apply to any claim arising out of or in connexion with the navigation or operation of a ship or the loading, carriage, or discharge of a cargo, other than claims for death or personal injury to which paragraph 4 of this Article does not apply. 6. Claims against members of a force or civilian component arising out of tortious acts or omissions in the receiving State not done in the performance of official duty shall be dealt with in the following manner: (a) The authorities of the receiving State shall consider the claim and assess compensation to the claimant in a fair and just manner, taking into account all the circumstances of the case, including the conduct of the injured person, and shall prepare a report on the matter. (b) The report shall be delivered to the authorities of the sending State, who shall then decide without delay whether they will offer an ex gratia payment, and if so, of what amount. (c) If an offer of ex gratia payment is made, and accepted by the claimant in full satisfaction of his claim, the authorities of the sending State shall make the payment themselves and inform the authorities of the receiving State of their decision and of the sum paid. (d) Nothing in this paragraph shall affect the jurisdiction of the courts of the receiving State to entertain an action against a member of a force or of a civilian component unless and until there has been payment in full satisfaction of the claim. 7. Claims arising out of the unauthorized use of any vehicle of the armed services of a sending State shall be dealt with in accordance with paragraph 6 of this Article, except in so far as the force or civilian component is legally responsible. 8. If a dispute arises as to whether a tortious act or omission of a member of a force or civilian component was done in the performance of official duty or as to whether the use of any vehicle of the armed services of a sending State was unauthorized, the question shall be submitted to an arbitrator appointed in accordance with paragraph 2 ( b ) of this Article, whose decision on this point shall be final and conclusive. 9. The sending State shall not claim immunity from the jurisdiction of the courts of the receiving State for members of a force or civilian component in respect of the civil jurisdiction of the courts of the receiving State except to the extent provided in paragraph 5 ( g ) of this Article. 10. The authorities of the sending State and of the receiving State shall co-operate in the procurement of evidence for a fair hearing and disposal of claims in regard to which the Contracting Parties are concerned. ...” THE LAW I. ADMISSIBILITY OF THE APPLICATION A. Objection of failure to exhaust domestic remedies 32. The respondent Government pointed out that in the six months following the Court of Cassation ’ s judgment, which dealt with the question of jurisdiction only in respect of the Italian State, not in respect of NATO or AFSOUTH, the applicants had not resumed the proceedings against NATO. In their submission, this reflected a lack of interest on the applicants ’ part and constituted, albeit indirectly, a failure to exhaust the domestic remedies available to them under Italian law. The respondent Government added at the hearing that the applicants ’ claim was based on provisions which, while of relevance to instituting criminal proceedings, could not validly be relied upon in the civil courts and they noted that the applicants had been unable to produce any example of a case in which a claim such as theirs had been successfully pleaded. 33. The applicants said that they had made a joint and several claim for reparation from the Italian State and NATO. However, after NATO claimed immunity in respect of its headquarters, they had withdrawn their claim against it with its consent. The action against NATO had therefore been finally extinguished. This had not, however, affected the action against the Italian State. The applicants pointed out that the respondent Government ’ s argument was illogical in that it required the applicants to pursue proceedings in the national courts when, according to the respondent Government ’ s own case, they had no right they could validly assert there. 34. The Court notes that in Banković and Others, cited above, which was based on the same facts as the present application save that the applicants in that case did not bring an action in the Italian courts, the Italian Government pleaded a failure to exhaust domestic remedies and actually cited the Markovic case as proof of the existence of a remedy. The applicants in the instant case made use of the remedy and pursued the proceedings which, in their view, had the greatest prospect of success as far as they could after NATO claimed immunity from the jurisdiction of the national courts. 35. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success ( see Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II ). The respondent Government have not provided any concrete example of a civil action being successfully brought against NATO. The Court does not, therefore, find convincing their argument that resuming the proceedings against NATO would have offered better prospects of success than the proceedings against the Italian State. 36. In these circumstances, the application cannot be dismissed for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. B. Whether the applicants came within the “jurisdiction” of the respondent State within the meaning of Article 1 of the Convention 1. The respondent Government ’ s submissions 37. The respondent Government submitted that the application was inadmissible as it was incompatible with the provisions of the Convention. With reference to the Article 6 complaint, they invited the Court to adopt the reasoning it had applied in Banković and Others when declaring the complaints concerning the essential rights guaranteed by the Convention inadmissible ratione loci. 38. The reference to Article 1 in the questions that had been put to the parties by the Court and the connection that undoubtedly existed with the Article 6 issue indicated that the Court considered the relevant question to be whether a right of access to the courts to assert a Convention right as opposed to an ordinary civil right existed in the present case. A person who was not within the national jurisdiction had no right of access to a remedy that would enable him or her to claim reparation for loss from the authorities of the State concerned. If a State had no liability for acts committed outside its territory, it could hardly be criticised for declining to accept an application complaining of the consequences of such acts. The respondent Government therefore submitted that, even though – in contrast to the applicants in Banković and Others – the applicants in the present case had brought themselves within the ambit of the State ’ s jurisdiction by lodging a claim with the authorities for reparation for their losses, their application, like that in Banković and Others, had to be considered as a whole and all the complaints, including those under Article 6, declared inadmissible. 39. The respondent Government further noted that an analysis of NATO ’ s decision-making system did not reveal any participation by Italy in the choice of the various targets and that all the military operations had been carried out in compliance with the rules of international humanitarian law. In those circumstances, it was very hard to establish any joint liability on the part of Italy. Accordingly, there was no jurisdictional link between the applicants and the Italian State. 40. In the respondent Government ’ s submission, it would be absurd in a case in which no obligation to protect a substantive right arose to hold that there was an obligation to protect the corresponding procedural right, that is to say, to afford a means of asserting that same substantive right in the national courts. 41. The respondent Government also raised the same objections as in Banković and Others with regard to the individual responsibility of States for acts committed by an international organisation of which they were members, observing that it would be illogical to hold the State – which was not responsible for the acts of international organisations of which it was a member – accountable under the Convention for not taking domestic measures to remedy the consequences of those acts. They submitted that the application should therefore be declared inadmissible as being incompatible ratione materiae with the provisions of the Convention. 2. The applicants ’ submissions 42. The applicants referred to the respondent Government ’ s objection in Banković and Others of a failure to exhaust domestic remedies. They submitted that it amounted to an acknowledgement, at least as regards the domestic legal order, that they were within the jurisdiction of the national courts. They added that Assistant Principal State Counsel at the Court of Cassation shared that view as, in his written submissions, he had argued that the lack of jurisdiction defence raised by the Prime Minister ’ s Office should be dismissed. 43. The applicants went on to say that in Banković and Others there had been no prior referral to the national courts. They argued that that difference sufficed to show that they were indisputably within the jurisdiction of the respondent State within the meaning of Article 1 of the Convention and consequently enjoyed the protection of the Convention. In their submission, the Court of Cassation ’ s decision was irreconcilable with Article 1 of the Convention in that it precluded any practical application of the provisions of the Convention in domestic law. 3. The intervening parties ’ submissions (a) The Government of Serbia and Montenegro 44. The Government of Serbia and Montenegro submitted that the complaint under Article 6 of the Convention was not incompatible ratione loci with the provisions of the Convention. They noted that the acts had been committed either on the territory of Serbia and Montenegro or on the territory of Italy, while the consequences had been suffered solely in Serbia and Montenegro. In their submission, the first point the Court had to take into consideration was that the aircraft which had bombed the RTS building had taken off in Italy, where the decision to carry out the raid had been taken in coordination with NATO headquarters in Brussels. The acts concerned also included all the physical and logistical preparation of the operation, which had resulted in the deaths of sixteen people. At the time, Italy and the other NATO member States had total control over the use of weapons in Serbian and Montenegrin airspace, but ultimately it was Italy which had had the aerial capacity to bomb the RTS building. These factors clearly showed the link between the events in issue and Italy, even though the consequences were suffered only in Serbia. In the Government of Serbia and Montenegro ’ s submission, the present case was, therefore, sufficiently distinguishable from Banković and Others (cited above) as to warrant a different conclusion and one that would avoid a denial of justice. They concluded from the above that the act complained of in the present case was not exclusively extraterritorial. (b) The Government of the United Kingdom 45. The British Government noted that in Banković and Others the Court had decided unanimously that all of the provisions of the Convention had to be read in the light of Article 1 of the Convention, which defined the scope of their application. The effect of Article 1, as the Court had decided in Banković and Others and in its earlier decision in the present case (see paragraph 4 above), was that the rights and freedoms guaranteed by the Convention were not applicable to an incident such as an attack – carried out in the course of an armed conflict – on a building outside the territory of the Contracting States concerned, because the persons affected by that attack were not within the jurisdiction of the Contracting States in question. 46. Once it had been established that the Convention was not applicable, it followed that those claiming in respect of that incident possessed no rights under the Convention. Accordingly, no question of a duty on the States Parties to the Convention to provide a remedy in the national courts for the violation of such rights could arise. 47. It was, therefore, entirely logical that the Grand Chamber in Banković and Others should have found the claim to be inadmissible with regard to Article 13 once it had found that the application did not fall within the scope of Articles 2 and 10. Referring to the case of Z and Others v. the United Kingdom ([GC], no. 29392/95, § 103, ECHR 2001-V), the British Government submitted that to the extent that Article 6, as opposed to Article 13, had a distinct role regarding the enforcement of rights under the other provisions of the Convention, the answer had to be the same under that Article. 48. It could make no difference that the individual applicant had subsequently entered the territory of the Contracting State and sought to bring proceedings there. While such a person could come within the jurisdiction of that Contracting State when he or she entered its territory, that fact could not retrospectively render the Convention applicable to a past event to which the Convention was not applicable at the time. Nor did it alter the fact that, at the time of the incident, that person was not within the jurisdiction of the State and accordingly it had no duty under Article 1 to guarantee to them the rights and freedoms set out in the Convention. Neither Article 13 nor Article 6 required a Contracting State to provide a remedy for violation of other provisions of the Convention if those other provisions were not applicable to the event in question because of their scope of application under Article 1. 4. The Court ’ s assessment 49. It will be recalled that in Banković and Others, the Court stated: “As to the ‘ ordinary meaning ’ of the relevant term in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State ’ s exercise of jurisdiction extraterritorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States. ” 50. It did not find any “jurisdictional link” for the purposes of Article 1 of the Convention between the victims of the act complained of and the respondent States and held that the action concerned did not engage the latter ’ s responsibility under the Convention. In the light of that finding, it considered it unnecessary to examine the remaining issues of admissibility that had been raised by the parties. 51. As for the other complaints which the applicants in the present case have made in their application (see paragraph 4 above), the Court has declared them inadmissible on the grounds that the specific circumstances of the case, notably the fact that the applicants had sought a remedy in the Italian courts, did not warrant a departure from the Banković and Others case-law. 52. However, as regards the complaint under Article 6 taken in conjunction with Article 1 of the Convention, the Court notes that in Banković and Others the respondent Government stressed that it was possible for proceedings to be brought in the Italian domestic courts, thus implying that the existence of a jurisdictional link could not be excluded for future complaints made on a different basis. The applicants had in fact already begun proceedings in the domestic courts. 53. The Court does not share the view of the Italian and British Governments that the subsequent institution of proceedings at the national level does not give rise to any obligation on the part of the State towards the person bringing the proceedings. Everything depends on the rights which may be claimed under the law of the State concerned. If the domestic law recognises a right to bring an action and if the right claimed is one which prima facie possesses the characteristics required by Article 6 of the Convention, the Court sees no reason why such domestic proceedings should not be subjected to the same level of scrutiny as any other proceedings brought at the national level. 54. Even though the extraterritorial nature of the events alleged to have been at the origin of an action may have an effect on the applicability of Article 6 and the final outcome of the proceedings, it cannot under any circumstances affect the jurisdiction ratione loci and ratione personae of the State concerned. If civil proceedings are brought in the domestic courts, the State is required by Article 1 of the Convention to secure in those proceedings respect for the rights protected by Article 6. The Court considers that, once a person brings a civil action in the courts or tribunals of a State, there indisputably exists, without prejudice to the outcome of the proceedings, a “jurisdictional link” for the purposes of Article 1. 55. The Court notes that the applicants in the instant case brought an action in the Italian civil courts. Consequently, it finds that a “jurisdictional link” existed between them and the Italian State. 56. In these circumstances, the Government ’ s preliminary objections based on the lack of a jurisdictional link must be dismissed. C. Whether Article 6 was applicable to the proceedings 1. The respondent Government ’ s submissions 57. The respondent Government submitted that Articles 6 and 13 did not apply to political acts. Relying on the judgment in Z and Others v. the United Kingdom (cited above), they submitted that the concept of political act could not be considered a “procedural bar” to the domestic courts ’ power to determine a substantive right, but a limitation on that right. 58. They submitted that there was no civil right in the present case that could be said, at least on arguable grounds, to be recognised under domestic law. 59. There were three reasons for this: firstly, no right to reparation for damage caused by an allegedly illegal act of war existed either under the rules of international law applicable in the instant case or under Italian domestic law; secondly, the impugned act was attributable to NATO, not the Italian State; thirdly and lastly, the right the applicants sought to assert was not recognised under domestic law because the political-acts doctrine precluded in limine any action against the State. 2. The applicants ’ submissions 60. The applicants pointed out that the question whether their claim was well-founded or ill-founded under the domestic legal system should have been determined by a court. However, the Court of Cassation ’ s decision had prevented them from asserting in the Italian courts a right recognised by Article 2043 of the Civil Code. Moreover, it was at variance with that court ’ s existing case-law and subsequent decisions. In the applicants ’ submission, the Court of Cassation ’ s judgment no. 5044 of 11 March 2004 (see paragraph 28 above) showed, firstly, that immunity from jurisdiction could never extend to the criminal law so that civil liability for criminal acts could not, therefore, ever be excluded and, secondly, that rules of international origin protecting fundamental human rights were an integral part of the Italian system and could therefore be relied on in support of a claim in respect of damage caused by criminal acts or by negligence. It followed that anyone alleging a violation of a right guaranteed by such rules was always entitled to the protection of the courts. 61. The applicants added that the respondent Government ’ s conduct was ambiguous to say the least: in Banković and Others they had pleaded a failure to exhaust domestic remedies and referred to the applicants ’ own domestic-court proceedings then pending before the Court of Cassation. However, the respondent Government now sought to argue that the applicants had no right which they could assert in the national courts, although they seemed to have taken the opposite view when the proceedings were still pending. The applicants contended that it had therefore been reasonable for them to consider that they possessed an at least arguable right when they commenced the proceedings in the domestic courts, since even the respondent Government had been sufficiently convinced that they had as to rely on that argument in the international proceedings. 3. The intervening parties ’ submissions (a) The Government of Serbia and Montenegro 62. The Government of Serbia and Montenegro pointed out that since the events in question Serbia and Montenegro had acceded to the Convention and that its citizens had to be permitted to assert their rights not only in the courts of their State of origin but also in the courts of other States Parties to the Convention in all cases in which there was a basis in law for so doing. (b) The Government of the United Kingdom 63. The British Government argued that Article 6 § 1 did not convert the Convention enforcement bodies into an appellate tribunal determining appeals from national courts as to the content of the law applicable in those courts, irrespective of whether that law was wholly national in origin or was derived from public international law. In their submission, the general rules of liability that released the State from liability for reasons of public policy did not fall within the scope of Article 6 § 1 at all. 4. The Court ’ s assessment 64. The Court considers that the objection that the application is incompatible ratione materiae with the provisions of the Convention is very closely linked to the substance of the applicants ’ complaint under Article 6 of the Convention. It therefore considers it appropriate to join this objection to the merits (see, among other authorities, Airey v. Ireland, 9 October 1979, § 19, Series A no. 32; and Ferrazzini v. Italy [GC], no. 44759/98, § 18, ECHR 2001 ‑ VII). 65. The Court notes, further, that the application raises issues of fact and law which require an examination of the merits. It accordingly concludes that the application is not manifestly ill-founded. Having also established that no other obstacle to its admissibility exists, it declares the remainder of the application admissible ( see Vo v. France [GC], no. 53924/00, § 45, ECHR 2004 ‑ VIII). In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 6 above), the Court will immediately consider the merits of the applicants ’ complaint ( see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 162, ECHR 2003 ‑ VI). II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 66. Relying on Article 6 of the Convention taken in conjunction with Article 1, the applicants complained of the Court of Cassation ’ s ruling that the Italian courts had no jurisdiction. The relevant parts of Article 6 read as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 1 provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” A. The parties ’ submissions 1. The applicants ’ submissions 67. The applicants pointed out that, in his written submissions, Assistant Principal State Counsel at the Court of Cassation had stated that the issues that had been raised concerned the merits of the case, not the question of jurisdiction. Further, under domestic law a civil action for compensation for damage caused by a criminal offence lay irrespective of whether the offence had been made out at a criminal trial or the offender convicted by a criminal court. Consequently, they argued that they had been fully entitled to seek reparation for the damage they had sustained without being required first to bring criminal proceedings to establish individual criminal liability, which was an entirely independent form of action. 68. In their submission, their action in the Rome District Court satisfied all the conditions required by Article 6 of the Convention for it to qualify as a claim for the determination of a civil right. Since they had brought an ordinary action for the reparation of non-pecuniary damage caused by an illegal act, there could be no doubt that they had asserted a right protected under domestic law which the courts had full jurisdiction to determine if the defendant resided in Italy. Moreover, even if the question was examined from the territorial perspective, that is to say, by reference to the locus commissi delicti, Article 6 of the Italian Criminal Code allowed proceedings to be brought even if only part of the impugned act was committed on Italian territory. The bombing could not have taken place without the agreement of the Italian political authorities and the military facilities placed at NATO ’ s disposal by Italy, as the raids had been carried out from Italian territory. Furthermore, Article 185 of the Italian Criminal Code required reparation for criminal offences to be made in accordance with the civil law. It followed that the nature of the right the applicants had sought to assert was indeed civil and that it was only because that conclusion was inescapable that the Court of Cassation had been forced to rule that the Italian courts had no jurisdiction, thereby circumventing Assistant Principal State Counsel ’ s conclusions. 69. The applicants maintained that the Court of Cassation ’ s case-law both before and after its judgment in the present case showed that a national court could only be deemed to have no jurisdiction under Italian law if there were no rules or principles in the domestic legal order theoretically capable of protecting the personal right it was sought to assert (see the full Court of Cassation ’ s judgments nos. 3316 of 31 May 1985 and 5740 of 24 October 1988). In the applicants ’ case, however, the Court of Cassation had only been able to find in favour of the respondent Government and so deny the applicants access to a court by disregarding the provisions of domestic and international law on which the applicants had based their claim for compensation for damage caused by the acts of an Italian public authority that had involved not only the bombing of the RTS building, but also all the preparatory acts performed in Italy with the permission and assistance of the Italian authorities (see Article 2043 of the Civil Code, Article 6 of the Criminal Code and Article 174 of the Wartime Criminal Military Code). Its decision had deprived the European Convention on Human Rights of all effect in domestic law and was at variance with the Court ’ s case-law requiring the States Parties to the Convention to secure effective respect for the rights protected by the Convention. Further, the Court of Cassation had characterised the State ’ s conduct at the origin of the claim as an “act of government”. It had deduced from this that the act in question was not subject to scrutiny by the courts and had gone on to assert that this principle took precedence over the European Convention on Human Rights, so that the applicants were unable to rely upon it to secure a right of access to the courts. 70. In the applicants ’ submission, that proposition denied the primacy of the Convention, a primacy that was also recognised in domestic law through Article 117 of the Constitution, which provided: “Legislative power is exercised by the State and the regions in compliance with the Constitution and the links arising out of the organisation of the Community and other international obligations.” Furthermore, the bombing of the RTS headquarters could not be classified in domestic law as an act of government capable of precluding judicial review. Under Italian law, an act of government excluded the jurisdiction of the administrative courts, and only of the administrative courts, as they alone took acts of government directly into consideration in their decisions or had power to quash them. Although Article 31 of Royal Decree no. 1054 of 26 June 1924 had introduced into the system a limitation on judicial review, it did not affect personal rights, such as the right to compensation for damage, which could be asserted in the ordinary courts. In any event, even if the jurisdictional limitation could still be said to exist in the Italian system after the entry into force of the Constitution, it could only cover the act of government by which Italian participation in the military operations in the former FRY had been decided on, not each isolated act or military operation such as the operation at the origin of the instant case. In reality, a bombing mission of that kind could not be characterised as an act of government that escaped the scrutiny of the courts. In a similar case, the jurisdiction of the Italian courts to try a case concerning criminal acts committed by Italian soldiers during the international military mission to Somalia was held not to have been ousted. Thus, in the applicants ’ submission, neither the domestic law nor the Convention justified the exclusion of a right of access to the courts to assert a right to compensation for damage caused by the acts of a public authority, even when those acts stemmed from a political decision. It was necessary to distinguish between the merits of the claim before the courts and the issue of jurisdiction. As to the general issue of the effects of the Convention in domestic law, the applicants were at pains to point out the gravity of some of the statements which the Court of Cassation had made in its judgment denying the Italian courts all jurisdiction. They noted that the judgment was contrary to the Court of Cassation ’ s own decisions in earlier cases (see, inter alia, the judgments of Polo Castro (1988), Mediano (1993), and Galeotti (1998)) and could, if confirmed, have serious implications extending beyond their own case, in view of the full Court of Cassation ’ s role as the highest judicial authority. They added, however, that the Court of Cassation had later abandoned the line it had taken in their case, thus further highlighting the injustice they had suffered. 2. The respondent Government ’ s submissions 71. The respondent Government said that Article 6 was not applicable. The first reason for this was that the right claimed by the applicants was not one that could validly be said to be recognised in domestic law. 72. They noted that the applicants had relied on Article 2043 of the Civil Code, Articles 6 and 185 of the Criminal Code and Article 174 of the Wartime Military Criminal Code. As regards Article 2043, the State ’ s liability in tort could only be engaged by intentional or negligent acts for which the State was accountable under various provisions of domestic law. However, the provisions that had been relied upon did not afford any right to reparation for losses caused by an allegedly illegal act of war. 73. The effect of Article 6 of the Criminal Code was to establish and determine the scope of the State ’ s territorial jurisdiction in criminal cases. In the respondent Government ’ s submission, Italy could not be accused of violating the right of access to a court merely because its domestic law provided greater access to a court than the laws of other States in that Article 6 § 2 of the Criminal Code afforded a remedy that enabled claims for compensation to be made for damage resulting from acts committed overseas. As to the combined application of Article 174 of the Wartime Military Criminal Code and Article 185 of the Criminal Code, it enabled the State ’ s responsibility to be engaged for acts perpetrated by members of its armed forces. 74. All of the provisions on which the applicants had relied concerned the commission of an individual offence whereas their complaint in the proceedings referred to damage caused by NATO air forces which could not be said to have engaged the individual criminal liability of members of the Italian armed forces. The respondent Government noted in passing that the case-law cited by the applicants was totally irrelevant as it concerned either cases relating to the individual liability of a member of the armed forces or cases in which the State ’ s civil liability had not been established. 75. Nor was any legal basis for the right to reparation claimed by the applicants to be found in the rules applicable to international customary law. In the domestic courts, the applicants had referred to Articles 35, 48, 51 and 91 of the Protocol Additional to the Geneva Conventions (Protocol I). These provisions restricted the right of parties to a conflict to choose the methods or means by which they would carry on the war by making it illegal for operations to be directed against non-military objectives. The intention was to create rights and obligations solely at the inter-State level and not to confer rights on individuals, even in cases involving an obligation to make reparation. The provisions did not afford any personal right to obtain reparation for damage sustained in war in the courts of the State responsible, or impose on the States Parties an obligation to change their domestic law to provide such a right. 76. Although perhaps desirable, no right to reparation for damage resulting from an allegedly illegal act of war currently existed under Italian law and Italy was not bound by any international obligation to introduce such a right into its domestic legal system. Reaching the opposite conclusion would entail interpreting Article 6 in such a way as to create a substantive right for which there was no basis in the law of the country concerned. Article 6 did not, however, create rights. Further, finding that Article 6 of the Convention afforded a right of access to a court to bring an action against the State for unlawful acts even in cases where the breach of the civil right resulted from acts of international policy, including peacemaking and peacekeeping operations, would undermine the efforts being made to encourage governments to cooperate in international operations of that kind. 77. Since the impugned act was extraterritorial and had been committed by an international organisation of which Italy was a member, it would be extremely difficult to establish any joint liability on the part of Italy. The prospects of successfully instituting proceedings in Italy to challenge the lawfulness of the actions of the NATO forces in Kosovo were remote and poor. Indeed, the applicants had not furnished a single example of a case in which such a claim had succeeded. Referring to the judgment in Prince Hans-Adam II of Liechtenstein v. Germany ([GC], no. 42527/98, ECHR 2001 ‑ VIII), the respondent Government submitted, therefore, that it was not possible to assert that a sufficient link existed between the outcome of the proceedings and the recognition of the rights claimed by the applicants. 78. Lastly, the dispute was not of a type that could be brought before the courts. The Court of Cassation had found that the fundamental issue underlying the applicants ’ complaint was whether the impugned act was illegal and engaged the responsibility of the Italian State. In deciding that it was a “political act” that escaped the scrutiny of the courts, the Court of Cassation had not set a limit on the right of access to a court but had defined the scope of the substantive right claimed by the applicants. In the respondent Government ’ s submission, the political-act doctrine did not create a procedural bar that removed or restricted the right to refer complaints to the courts, it precluded an action against the State in limine. 79. As to the merits of the complaint, and in the event of the Court finding Article 6 of the Convention applicable despite the above arguments, the respondent Government submitted that there had been no violation of that provision and that the restriction on the applicants ’ right of access to a court was both consistent with the rule of law and the principle of the separation of powers, and proportionate to the legitimate aim pursued. 80. In their view, the national courts ’ lack of jurisdiction had not resulted in an infringement of the right of access to a court guaranteed by Article 6 of the Convention. The right was not unlimited: it could be regulated by the State and the State enjoyed a margin of appreciation in respect thereof. In Italy, neither the State, nor the government, nor the public authorities enjoyed any general form of immunity from jurisdiction. The Court of Cassation ’ s ruling in the present case that the Italian courts had no jurisdiction did not constitute a restriction applicable to claims for compensation for loss from the State per se. It referred only to a very narrow category of act asserting “State authority” at the highest level. These were “political” acts which concerned the State as a unit in relation to which the judiciary could not be regarded as a “third party”. Legislation was a typical example of an “act of government” that could cause damage to individuals. Yet the Court had already stated that the Convention did not go so far as to require the States to provide machinery for challenging legislation. 81. Other acts asserted “State authority” at the highest level: these were acts of international policy and, through them, acts of war. The rule that acts implementing a State ’ s fundamental political decisions were legitimately excluded from the realm of judicial competence stemmed from the principle of the separation of powers and the need to avoid involving the judiciary – which by definition had no democratic legitimacy – in the task of identifying the objectives that served the general interest or of choosing the means used to achieve such objectives. In sum, the judiciary could not be involved, even after the event, in the task of deciding national policy. 82. In the respondent Government ’ s submission, there was thus a legitimate purpose to the limitation imposed on access to the courts when the impugned act had a political objective. As to the rule requiring proportionality between the means used and the aim pursued, the respondent Government pointed out that the exemption from jurisdiction did not violate the very essence of the individual ’ s right of access to a court because it did not prevent access to a whole range of civil actions or confer immunity on large groups of people, but applied only to a limited and very strictly defined category of civil actions against the State. Nor was there any doubt that the aim pursued by the political-act doctrine could be achieved only by ousting the jurisdiction of the courts. For all these reasons, there had been no violation of Article 6 of the Convention. B. The intervening parties ’ submissions 1. The Government of Serbia and Montenegro 83. The Government of Serbia and Montenegro observed that the principle requiring the reparation of damage was a fundamental notion dating back to the Roman-law principle of neminem laedere that had been recognised as a general principle by the international treaties of civilised nations. They said that the principle had been applied by the Court in Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII) when it ruled that a State – which had granted itself immunity on public-policy grounds in an action in tort – had to provide other means to enable victims of damage sustained as a result of an act or omission of the State to obtain reparation. 84. The Government of Serbia and Montenegro added that the underlying explanation for Article 6 of the Convention was to be found in the principle of the rule of law enunciated in Article 3 of the Statute of the Council of Europe. They said that it would be difficult to envisage that principle being applied without access to a court and referred to the judgment in Fayed v. the United Kingdom (21 September 1994, § 65, Series A no. 294 ‑ B ), in which the Court stated: “ [I]t would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons. ” 85. Lastly, they explained that in Serbia and Montenegro, neither the civil nor the constitutional courts could decline to decide an issue on the pretext that it concerned an act of government. The sole problem that could arise was whether rules existed under the domestic law which would enable the acts concerned to be reviewed. Adopting the act of government doctrine would considerably limit the aim pursued in applying the law, as regards both access and the effectiveness of remedies such as those guaranteed by the Convention. By its very nature, such a doctrine would justify acts relating to the implementation of foreign policy being removed from scrutiny on the grounds of “reasons of State”, with the result that human-rights protection would become impossible. In the Government of Serbia and Montenegro ’ s submission, the doctrine of the rule of law should prevail over that of reasons of State. 2. The Government of the United Kingdom 86. The British Government submitted that a rule of national law that an individual was not entitled to compensation, or its corollary that the State did not incur liability, for acts performed by the State in the conduct of foreign relations did not violate Article 6 § 1. 87. They noted that such a rule was common in the laws both of member States of the Council of Europe and elsewhere even though different legal systems formulated it in different ways (for example, as a rule that decisions in the conduct of foreign relations were not justiciable or that a general rule relating to liability did not extend to damage caused by acts of war or other actions taken by the State in the course of its international relations). 88. Whichever way it was formulated, such a rule was a limit on the scope of the substantive law of the State concerned, not a limit on the right of access to courts to enforce that law. In the British Government ’ s submission, the substantive position was very similar to that in Z and Others v. the United Kingdom (cited above). Like the limiting rule of English law which was in issue in Z and Others, the rule of national law that the State was not liable to compensate individuals for losses which they had suffered on account of the State ’ s decisions in the conduct of foreign relations limited the scope of the general rules of liability in their application to the State for reasons of public policy. The British Government submitted that to treat such a rule as contrary to Article 6 § 1 would be to do precisely what the Court had repeatedly said it could not do, namely to create, by way of interpretation of Article 6 § 1, a substantive right which had no basis in the law of the Contracting State concerned. 89. While the British Government were of the view that rules of the kind considered above did not fall within the scope of Article 6 § 1 at all, and if (contrary to that view) it were held that they did, they submitted that they should be regarded as reasonable and proportionate limitations on the scope of the rights conferred by Article 6 § 1 which were necessary in a democratic society. 90. The British Government had already noted that many systems of national law had a rule similar to that applied by the Italian courts in the present case. They added that such a rule served a clear public purpose in a democratic State in defining the nature of the separation of powers between courts and executive with regard to the conduct of foreign relations and military activity. 91. In the British Government ’ s view, such a rule could not be said to violate Article 6 § 1 of the Convention. C. The Court ’ s assessment 1. General principles 92. The right of access to a court in issue in the present case is derived from Article 6 and was established in Golder v. the United Kingdom (21 February 1975, §§ 28-36, Series A no. 18 ), in which the Court established, by reference to the principles of the rule of law and the avoidance of arbitrary power underlying much of the Convention, that the right of access to a court was an inherent aspect of the safeguards enshrined in Article 6. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court. 93. The Court refers to its constant case-law to the effect that “Article 6 § 1 extends only to ‘ contestations ’ (disputes) over (civil) ‘ rights and obligations ’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) ‘ rights and obligations ’ in the substantive law of the Contracting States” (see James and Others v. the United Kingdom, 21 February 1986, § 81, Series A no. 98; Lithgow and Others v. the United Kingdom, 8 July 1986, § 192, Series A no. 102; and The Holy Monasteries v. Greece, 9 December 1994, § 80, Series A no. 301-A). The Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned ( see Roche v. the United Kingdom [GC], no. 32555/96, § § 116- 17, ECHR 2005 ‑ X). It will however apply to disputes of a “genuine and serious nature” concerning the actual existence of the right as well as to the scope or manner in which it is exercised (see Benthem v. the Netherlands, 23 October 1985, § 32, Series A no. 97, and Z and Others v. the United Kingdom, cited above, § 87). 94. The distinction between substantive limitations and procedural bars determines the applicability and, as the case may be, the scope of the guarantees under Article 6. The fact that the particular circumstances of, and complaints made in, a case may render it unnecessary to draw the distinction between substantive limitations and procedural bars (see, among other authorities, A. v. the United Kingdom, no. 35373/97, § 65, ECHR 2002 ‑ X) does not affect the scope of Article 6 of the Convention which can, in principle, have no application to substantive limitations on the right existing under domestic law. 95. In assessing therefore whether there is a civil “right” and in determining the substantive or procedural characterisation to be given to the impugned restriction, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts ( see Masson and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A no. 327-A). Where, moreover, the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law (see Z and Others v. the United Kingdom, cited above, § 101) and by finding, contrary to their view, that there was arguably a right recognised by domestic law. 96. Finally, in carrying out this assessment, it is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation ( see Van Droogenbroeck v. Belgium, 24 June 1982, § 38, Series A no. 50). The Court must not be unduly influenced by, for example, the legislative techniques used (see Fayed, cited above, § 67) or by the labels put on the relevant restriction in domestic law: the oft-used word “immunity” can mean an “immunity from liability” (in principle, a substantive limitation) or an “immunity from suit” (suggestive of a procedural limitation) (see Roche, cited above, §§ 119- 21). 97. Nevertheless, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons (see Fayed, cited above, § 65). 98. Article 6 § 1 may also be relied on by “anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1” (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 44, Series A no. 43). Where there is a serious and genuine dispute as to the lawfulness of such an interference, going either to the very existence or the scope of the asserted civil right, Article 6 § 1 entitles the individual “to have this question of domestic law determined by a tribunal” ( see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 81, Series A no. 52; see also Tre Traktörer AB v. Sweden, 7 July 1989, § 40, Series A no. 159). 99. The right is not absolute, however. It may be subject to legitimate restrictions such as statutory limitation periods, security for costs orders, regulations concerning minors and persons of unsound mind (see Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 51-52, Reports 1996-IV; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §§ 62 ‑ 67, Series A no. 316-B; and Golder, cited above, § 39). Where the individual ’ s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved ( see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93). If the restriction is compatible with these principles, no violation of Article 6 will arise ( see Z and Others v. the United Kingdom, cited above, §§ 92-93). 2. Application of these principles in the instant case (a) Applicability of Article 6 of the Convention 100. In the instant case, the applicants brought an action in damages in tort against the State under Article 2043 of the Civil Code and also relied in their claim on Article 6 of the Criminal Code, Article 174 of the Wartime Military Criminal Code and on the provisions of the Protocol Additional to the Geneva Conventions (Protocol I) and of the London Convention of 1951 (see paragraphs 2 2 -2 5 and 30 - 31 above). They relied on various authorities although, as the respondent Government pointed out, none of them were exactly on all fours with the present case because they primarily concerned the individual liability of members of the armed forces. The respondent Government cited a decision concerning political acts. However, while it may have been of some relevance to the decision in the instant case, it was not sufficiently similar to qualify as a precedent. It was therefore on the facts of the applicants ’ own case that the domestic courts were called upon to decide for the first time whether such a situation came within Article 2043 of the Civil Code. 101. The Court therefore considers that there was from the start of the proceedings a genuine and serious dispute over the existence of the right to which the applicants claimed to be entitled under the civil law. The respondent Government ’ s argument that there was no arguable (civil) right for the purposes of Article 6 because of the Court of Cassation ’ s decision that, as an act of war, the impugned act was not amenable to judicial review, can be of relevance only to future allegations by other complainants. The Court of Cassation ’ s judgment did not make the applicants ’ complaints retrospectively unarguable ( see Z and Others v. the United Kingdom, cited above, § 89). In these circumstances, the Court finds that the applicants had, on at least arguable grounds, a claim under domestic law. 102. Accordingly, Article 6 is applicable to the applicants ’ action against the State. The Court therefore dismisses the respondent Government ’ s preliminary objection on this point. It must therefore examine whether the requirements of that provision were complied with in the relevant proceedings. (b) Compliance with Article 6 of the Convention 103. In the present case, the applicants alleged that the Court of Cassation ’ s ruling that the Italian courts had no jurisdiction had prevented them from gaining access to a court and securing a decision on the merits of their claim. 104. The applicants and the Government of Serbia and Montenegro considered that a right to reparation arose directly from the wording of the relevant Codes, whereas the other two Governments argued that such a right could not apply to acts of war, or to peacemaking or peacekeeping operations. The applicants submitted that their right to reparation derived from Article 2043 of the Civil Code, while also relying on Article 6 of the Criminal Code, Article 174 of the Wartime Military Criminal Code and the Protocol Additional to the Geneva Conventions (Protocol I). 105. First and foremost the Court would note that the applicants were not in practice prevented from bringing their complaints before the domestic courts. 106. The Court of Cassation considered the answer to be clear, which explains why it rejected this jurisdictional point in rather summary terms. It found as follows: the impugned act was an act of war; since such acts were a manifestation of political decisions, no court possessed the power to review the manner in which that political function was carried out; further, the legislation that gave effect to the instruments of international law on which the applicants relied did not expressly afford injured parties a right to claim reparation from the State for damage sustained as a result of a violation of the rules of international law. 107. The Court reiterates the fundamental principles established by its case-law on the interpretation and application of domestic law. While the Court ’ s duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. 108. Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. This also applies where domestic law refers to rules of general international law or international agreements. The Court ’ s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/99, § 54, ECHR 1999-I; Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II; and Prince Hans-Adam II of Liechtenstein, cited above, §§ 43-50). 109. Although it is not its role to express any view on the applicability of the Protocol Additional to the Geneva Conventions (Protocol I) or the London Convention, the Court notes that the Court of Cassation ’ s comments on the international conventions do not appear to contain any errors of interpretation. There are two reasons for this: firstly, the statement that Protocol I regulates relations between States is true; secondly, the applicants relied on paragraph 5 of Article VIII of the London Convention, which concerns acts “... causing damage in the territory of the receiving State to third parties ...” (see paragraph 31 above), whereas the applicants ’ damage was sustained in Serbia, not Italy. As to the assertion that it is the only body with power to find violations of the Convention, the Court reiterates that under Article 1, which provides “[t] he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of th [e] Convention”, the primary responsibility for implementing and enforcing the rights and freedoms guaranteed by the Convention is laid on the national authorities. The machinery of application to the Court is thus subsidiary to national systems safeguarding human rights ( see Cocchiarella v. Italy [GC], no. 64886/01, § 38, ECHR 2006 - V ). Since, in the instant case, the complaint under Article 2 of the Convention has been declared inadmissible (see paragraph 4 above), the Court does not consider that the effects of the Court of Cassation ’ s interpretation give rise to any problems of compatibility. 110. The Court further notes that by virtue of Articles 41 and 37 of the Code of Civil Procedure, the preliminary jurisdictional point taken by the ministries in this case would have had to be raised at some point, even by the trial court of its own motion, in view of the involvement of a public authority (see paragraph 2 3 above). It did not, therefore, amount to a form of immunity which the State was at liberty to waive. 111. Consequently, it is not possible to conclude from the manner in which the domestic law was interpreted or the relevant international treaties were applied in domestic law that a “right” to reparation under the law of tort existed in such circumstances. Even if the applicants ’ assertion is correct that, as a result of changes in the case-law, it has been possible to claim such a right since 2004, this does not justify the conclusion that such a right existed before then. 112. The Court also notes that the Court of Cassation had already ruled in an earlier case that the Italian courts had no jurisdiction over the authorities for acts of a political nature and that such acts did not give rise to a cause of action against the State because they did not damage personal legal interests, which were the only interests capable of affording a right to compensation under the domestic case- law (see paragraph 2 6 above). Indeed, it was after the hearing before it that the Court of Cassation provided clarification as to what constituted an arguable claim in law. In determining the limits of its jurisdiction, the Court of Cassation marked out the bounds of the law of tort. 113. The Court does not accept the applicants ’ assertion that the impugned decision constituted an immunity, either de facto or in practice, because of its allegedly absolute or general nature. As the respondent Government rightly noted, the decision concerned only one aspect of the right to bring an action against the State, this being the right to claim damages for an act of government related to an act of war, and cannot be regarded as an arbitrary removal of the courts ’ jurisdiction to determine a whole range of civil claims (see Fayed, cited above, § 65). As was pointed out by the British Government and as the Court observed in paragraph 9 3 above, it is a principle of Convention case-law that Article 6 does not in itself guarantee any particular content for civil rights and obligations in national law. It is not enough to bring Article 6 § 1 into play that the non-existence of a cause of action under domestic law may be described as having the same effect as an immunity, in the sense of not enabling the applicant to sue for a given category of harm ( see Z and Others v. the United Kingdom, cited above, § 98). 114. The Court considers that the Court of Cassation ’ s ruling in the present case does not amount to recognition of an immunity but is merely indicative of the extent of the courts ’ powers of review of acts of foreign policy such as acts of war. It comes to the conclusion that the applicants ’ inability to sue the State was the result not of an immunity but of the principles governing the substantive right of action in domestic law. At the relevant time, the position under the domestic case-law was such as to exclude in this type of case any possibility of the State being held liable. There was, therefore, no limitation on access to a court of the kind in issue in Ashingdane (cited above, § 57). 115. It follows that the applicants cannot argue that they were deprived of any right to a determination of the merits of their claims. Their claims were fairly examined in the light of the domestic legal principles applicable to the law of tort. Once the Court of Cassation had considered the relevant legal arguments that brought the applicability of Article 6 § 1 of the Convention into play, the applicants could no longer claim any entitlement under that provision to a hearing of the facts. Such a hearing would only have served to protract the domestic proceedings unnecessarily because, even assuming that the Court of Cassation ’ s decision did not automatically bring the proceedings pending in the Rome District Court to an end, the District Court would only have had power to determine the nature of the impugned acts and, in the circumstances of the case, would have had no alternative but to dismiss the claim. The Court agrees with the British Government that the present case bears similarities to the aforementioned case of Z and Others v. the United Kingdom. As in that case, the applicants in the present case were afforded access to a court; however, it was limited in scope, as it did not enable them to secure a decision on the merits. 116. In the light of the foregoing, the Court finds that there has been no violation of Article 6 of the Convention. | The Court held that once the applicants had brought a civil action in the Italian courts, there indisputably existed a jurisdictional link for the purposes of Article 1 (obligation to respect human rights) of the Convention. |
833 | Seizure of smart phone and search of its mirror image copy | RELEVANT LEGAL FRAMEWORK AND PRACTICE The Code of Criminal Procedure 29. The 1981 Code of Criminal Procedure ( straffeprosessloven ), as in force at the relevant time, included the following provisions: Article 119 “Without the consent of the person entitled to the preservation of secrecy, the court may not receive any statement from clergymen in the state church, priests or pastors in registered religious communities, lawyers, defence counsel in criminal cases, conciliators in matrimonial cases, medical practitioners, psychologists, chemists, midwives or nurses about anything that has been confided to them in their official capacity. ... This prohibition no longer applies if the statement is needed to prevent an innocent person from being punished. ...” Article 203 “Objects that are deemed to be significant as evidence may be seized until a legally enforceable judgment takes effect. The same applies to objects that are deemed to be liable to confiscation or to a claim for surrender by an aggrieved person. ...” Article 204 “Documents or any other items whose contents a witness may refuse to testify about under Articles 117 to 121 and 124 to 125, and which are in the possession either of a person who can refuse to testify or of a person who has a legal interest in keeping them secret, cannot be seized. In so far as a duty to testify may be imposed in certain cases under the said provisions, a corresponding power to order a seizure shall apply. The prohibition in the first paragraph does not apply to documents or any other items that contain confidences between persons who are suspected of being accomplices to the criminal act [in question]. Nor does it prevent documents or any other items being removed from an unlawful possessor to enable them to be given to the person entitled thereto.” Article 205 “A decision relating to the seizure of an object that the possessor will not surrender voluntarily may be taken by the prosecuting authority. The decision shall as far as possible be in writing and specify the nature of the case, the purpose of the seizure, and what it shall include. An oral decision shall as soon as possible be rendered in writing. The provisions of Article 200, first paragraph, shall apply correspondingly. When the prosecuting authority finds that there are special grounds for doing so, it may bring the question of seizure before a court. The provisions of the second to the fourth sentences of the first paragraph of this Article and of Article 209 shall apply correspondingly to the court’s decision relating to seizure. The provisions of the first and third paragraphs of Article 208 shall also apply when seizure has been decided on by the court pursuant to this paragraph. Documents or any other item in respect of which the possessor is not obliged to testify except by special court order may not be seized without a court order unless such a special order has already been made. If the police wish to submit documents to the court for a decision as to whether they may be seized, the said documents shall be sealed in a closed envelope in the presence of a representative of the possessor.” Article 208 “Any person who is affected by a seizure may immediately or subsequently demand that the question of whether it should be maintained be brought before a court. The prosecuting authority shall ensure that any such person shall be informed of this right. The provision of the first sentence of the first paragraph shall apply correspondingly when any person who has voluntarily surrendered any object for seizure demands that it be returned. The decision of the court shall be made by an order.” The Supreme Court’s decision of 16 January 2017 30. In its decision of 16 January 2017, the Supreme Court considered the procedures governing the search of an extensive collection of e-mails collected from an accused person. After deciding on the specific case before it, the Supreme Court proceeded to attempt a general clarification of how, in procedural terms, to deal with situations where the police were examining seized data, only to discover that they included correspondence with lawyers. 31. The Supreme Court stated that counsel in the case before it had argued that if the police, when perusing data items, came across correspondence with lawyers, the perusal would have to cease immediately and all items on the data carriers in question would have to be transmitted to the City Court so that that court could separate the data which were exempt from seizure from those which could be searched by the prosecuting authority and possibly seized, should they be found to contain evidence of interest. Counsel had further submitted that the latter procedure would also have to be followed where the accused person claimed that the materials collected included data that were exempt from seizure. 32. The Supreme Court disagreed with counsel’s submissions. In the Supreme Court’s view, one could not set out as a general rule that any discovery of data exempt from seizure, or any claim that such data existed among those collected, would always automatically ( uten videre ) lead to the prosecuting authority having to discontinue its perusal of the collected data. 33. Reference was made to the fact that the primary competence to decide on seizures lay with the prosecuting authority. It was, accordingly, the prosecuting authority which had the primary responsibility for ensuring that no seizure was ordered beyond what was authorised in the Code of Criminal Procedure. From this it was inferred that the prosecuting authority also had first of all to have powers to examine any data collected; it was an evident precondition, however, that in so doing the prosecuting authority would filter out and return or delete whatever data it could not lawfully keep. 34. The preparatory works to the Code of Criminal Procedure had stated that when carrying out a search the police had to look through documents in order to be able to take a decision on whether they should be seized, and that it was unavoidable that the police in that context might happen to look through documents that would be exempt from seizure. 35. The Supreme Court reiterated that in its decision of 27 March 2013 (Rt-2013-968) it had found that the aforementioned statements in the preparatory works could not apply to a situation where a lawyer’s office was being searched and where the lawyer had maintained that documents in the office were subject to legal professional privilege. In such circumstances there would be a presumption that documents and other data were subject to confidentiality and should therefore be submitted to the City Court without any prior perusal or filtering. 36. In the Supreme Court’s view, however, the procedure established in respect of searches and seizures of data in lawyer’s offices was not to be transposed to any situation where lawyer’s correspondence was discovered as part of a larger collection of data or where someone alleged that the data that had been collected comprised such correspondence. In such situations, it was, according to the Supreme Court, more natural to apply procedures based on the guidelines which it had drawn up with regard to conversations recorded during surveillance. 37. Specifically, in its decision of 27 January 2015 (Rt-2015-81), the Supreme Court had indicated that in situations where the prosecuting authority, when reviewing surveillance data, became aware that a conversation involved or might involve a lawyer and his or her client, it could not itself listen through the conversation or read through transcripts of it in order to assess whether the conversation was subject to LPP. The Supreme Court found in that case that a system which entailed that the data at issue in such circumstances had to be sent to the regional court for examination would be compatible with Article 8 of the Convention. It did not pronounce on whether other types of filtering arrangements could be put in place meeting the requirements of that provision. 38. Returning to the case before it concerning e-mails, the Supreme Court assumed that an arrangement for filtering out data covered by LPP based on the guidelines drawn up on surveillance data in the above-mentioned decision would meet the requirements deriving from this Court’s case-law under Article 8 of the Convention. If one accepted that the police were the first to peruse the data in question, the domestic courts’ task would be limited to examining the data submitted to them by the police. 39. The Supreme Court refrained from commenting on how the police could sort the data, either in the case before it or in general, beyond pointing out that criteria for searching the data should be chosen in cooperation with counsel for the defence or counsel appointed to safeguard the interests of persons unaware that a search was being carried out, when a procedure to the latter effect was carried out. 40. Lastly, the Supreme Court stated that the existing legal regulation was not suited to technological developments which facilitated the seizure of large batches of data saved, for example, on computers, mobile phones and memory sticks. The Supreme Court noted that some of the difficulties had been commented on in the preparatory works relating to a proposal of a new Criminal Code, and in its view a more detailed regulation appeared pertinent ( synes nærliggende ). THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 41. The applicant complained that allowing the police to carry out an introductory examination of his smart phone in order to filter out data which might be exempt from seizure due to LPP, entailed a breach of Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The parties’ submissions 42. The Government accepted that search and seizure of the applicant’s smart phone had amounted to an interference with his right to respect for his correspondence under Article 8 of the Convention. 43. As to whether the interference had been in accordance with the law, the Government maintained that the search and seizure had had a formal basis in the Code of Criminal Procedure and that the law had been accessible and foreseeable to the applicant. The relevant provisions of the Code of Criminal Procedure had been formulated with sufficient precision. Although the relevant legislation had not been applied as it was in the instant case until the Supreme Court’s decision of 16 January 2017, the procedures described in that decision had not contradicted any earlier Supreme Court rulings. Legal interpretation developed through case-law, and it was essential for national courts to be able to facilitate such development in order to ensure that the law was applied correctly to cases not specifically dealt with in the relevant legislation. This held especially true in a case such as the present one, where the legislation did not deal with the issue at hand owing to technological developments unforeseen by the lawmakers. 44. Furthermore, the Government argued that the search and seizure of the applicant’s smart phone had pursued the legitimate aim of preventing disorder and crime and had been necessary in order to obtain evidence in the criminal investigation in which the applicant was the aggrieved party. They also submitted that the Code of Criminal Procedure contained adequate and effective safeguards against abuse in respect of decisions to search as well as to seize objects. The preliminary filtering and deletion of LPP data had been carried out by a police officer who had not been involved in investigating the instant case. 45. The applicant submitted that the Supreme Court’s decision in the present case represented a departure from well-established practice in terms of filtering out data subject to LPP, such that he could not to a reasonable degree foresee the consequences; nor had the law been accessible to him. 46. Furthermore, the applicant argued that the impugned measure was not necessary in a democratic society because the relevant legislation and practice had not afforded the applicant adequate and effective safeguards against abuse. The applicant maintained that the case concerned not judicial authorisation before a seizure but the procedure regarding the seizure of a batch of data partly made up of information exempt from seizure, and how to filter that information out. Admissibility 47. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits 48. The Court observes at the outset that it is undisputed between the parties that the search of the applicant’s smart phone and/or the mirror image copy of it, entailed an interference with his right to respect for his correspondence under the first paragraph of Article 8 of the Convention, and considers that this cannot be called into question (see for example, mutatis mutandis, Laurent v. France, no. 28798/13, § 36, 24 May 2018). Moreover, the Court notes that the search was carried out towards the applicant in his capacity of being the aggrieved party in the pertinent investigation (see paragraph 5 above). 49. As to the question of whether the interference was in accordance with the law under the second paragraph of that provision, the Court observes that the decisions relating to the search as such, and ultimately any seizure of data from the applicant’s smart phone, had a formal basis in law, namely in the provisions on searches in Chapter 15 and those on seizures in Chapter 16 of the Code of Criminal Procedure (see paragraph 29 above). In so far as it had been established that access to correspondence between the applicant and his lawyers could be obtained via the mirror image copy of his smart phone, the crux of the case is, however, whether the law in question had sufficient quality and offered sufficient safeguards to ensure that LPP was not compromised during the search and seizure procedure. 50. In that context, the Court reiterates that Article 8 § 2 of the Convention requires the law in question to be “compatible with the rule of law”. In the context of searches and seizures, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances and conditions under which public authorities are empowered to resort to any such measures. Moreover, search and seizure represent a serious interference with private life, home and correspondence and must accordingly be based on a “law” that is particularly precise. It is essential to have clear, detailed rules on the subject (see Sallinen and Others v. Finland, no. 50882/99, §§ 82 and 90, 27 September 2005). 51. Furthermore, the Court has acknowledged the importance of specific procedural guarantees when it comes to protecting the confidentiality of exchanges between lawyers and their clients and of LPP (see, inter alia, Sommer v. Germany, no. 73607/13, § 56, 27 April 2017, and Michaud v. France, no. 12323/11, § 130, ECHR 2012). It has emphasised that professional secrecy is the basis of the relationship of trust existing between a lawyer and his client and that the safeguarding of professional secrecy is in particular the corollary of the right of a lawyer’s client not to incriminate himself, which presupposes that the authorities seek to prove their case without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the “person charged” (see, for example, André and Another v. France, no. 18603/03, § 41, 24 July 2008). However, in its case-law, the Court has distinguished between the question of whether Article 8 has been violated in respect of investigative measures and the question of possible ramifications of a finding to that effect on rights guaranteed under Article 6 (see, for example, among many other authorities, Dragoș Ioan Rusu v. Romania, no. 22767/08, § 52, 31 October 2017; and Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 106, 26 April 2007, with further references). Moreover, the Court has stressed that it is clearly in the general interest that any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion and that it is for that reason that the lawyer-client relationship is, in principle, privileged. It has not limited that consideration to matters relating to pending litigation only and has emphasised that, whether in the context of assistance for civil or criminal litigation or in the context of seeking general legal advice, individuals who consult a lawyer can reasonably expect that their communication is private and confidential (see, for example, Altay v. Turkey (no. 2), no. 11236/06, §§ 49-51, 9 April 2019, and the references therein). 52. Proceeding to the circumstances of the instant case, the Court first of all observes that there was agreement that the mirror image copy of the applicant’s smart phone contained correspondence between him and his lawyers (see paragraph 6 above). It also observes that the Code of Criminal Procedure did not include any express provisions originally designed to prescribe the procedure for such situations in which LPP could be at stake. There was however initial common ground between the police and the applicant that in order to ensure that LPP was not compromised, the data on the mirror image copy had to be sifted out by the City Court and any LPP data removed before the police could search the remainder. The legal basis for that procedure would be an application by analogy of Article 205 § 3 of the Code of Criminal Procedure (see paragraphs 6 and 29 above). The City Court appears to have shared this understanding and proceeded accordingly in order to have the filtering carried out (see paragraphs 6-7 above). Nonetheless, there was, in the absence of any express and specific rules on the matter, subsequent disagreement as to how the City Court could go about it in practical terms, including whether it could seek assistance from the police (see paragraphs 8-11 above). 53. Thereupon, while the City Court was proceeding to sift out the LPP data in the applicant’s case, the Supreme Court gave a decision in an entirely unrelated case in which the applicant had played no part, which indicated that it was – contrary to the assumptions of the applicant, the police and the City Court – in fact the police itself that should filter the data, seemingly because the Supreme Court had found that another analogy than that until then assumed correct in the instant case was more pertinent, namely application by analogy of the procedures relating to surveillance data (see paragraphs 37-38 above). After obtaining the views of the persons involved in the applicant’s case concerning that new decision, the City Court concluded that owing to the Supreme Court’s fresh directions it should abandon its filtering procedure and send the mirror image copy back to the police. Thereafter the police itself examined it as described in its report of 9 November 2017 (see paragraph 27 above). 54. Having regard to the foregoing observations, the Court does not find it necessary in the instant case to consider whether or under what circumstances credible claims for LPP in respect of specific data carriers entail that they must be sent to a court or another third-party independent of the police and prosecution in order to have any data covered by LPP deleted before the latter may proceed to search the data carriers. In the instant case it suffices for the Court to make the following observations. 55. Firstly, the Court takes note of the circumstance that the proceedings relating to the filtering of LPP in cases such as the present one lacked a clear basis in the Code of Criminal Procedure right from the outset, which rendered them liable to disputes such as that which followed the Supreme Court’s decision of 16 January 2017. Secondly, the actual form of the proceedings could hardly be foreseeable to the applicant – notwithstanding that he was allowed to object (see paragraph 12 above) – given that they were effectively reorganised following that decision. Thirdly, and most importantly, the Court finds that the Government have not rebutted the applicant’s contention that subsequently to the Supreme Court’s finding in its decision of 16 January 2017 that the police should themselves examine the data carriers in cases such as the present one, the decision to apply that instruction to the applicant’s ongoing case, which became final with the Supreme Court’s decision of 30 June 2017 (see paragraph 26 above), meant that no clear and specific procedural guarantees were in place to prevent LPP from being compromised by the search of the mirror image copy of his phone. The Supreme Court had not given any instructions as to how the police were to carry out the task of filtering LPP, apart from indicating that search words should be decided upon in consultation with counsel; even though the claim lodged for LPP in the instant case was as such undisputedly valid, the mirror image copy was effectively just returned to the police for examination without any practical procedural scheme in place for that purpose. As to the report of 9 November 2017 (see paragraph 27 above), it described the deletion of data in the applicant’s case, but did not describe any clear basis or form for the procedure either. 56. In this context the Court emphasises that it has noted that the Government did indeed point to the procedural safeguards in place relating to searches and seizures in general; the Court’s concern is, however, the lack of an established framework for the protection of LPP in cases such as the present one. On that point, the Court observes in passing that the Supreme Court, in its decision of 16 January 2017 in fine, also pointed to the lack of provisions suited to situations where LPP data form part of batches of digitally stored data, and indicated that it would be natural to regulate the exact issue that arose in the instant case by way of formal provisions of law (see paragraph 40 above). The Court thus notes that the issue that arose in the instant case was not as such owing to the Supreme Court’s findings in that case, rather it originated in the lack of appropriate regulation as pointed out by that court. 57. Although no such regulation was in place in the applicant’s case, the Court has no basis to decide whether or not LPP was actually compromised in his case, nor has the applicant submitted that it was. In the Court’s view, however, the lack of foreseeability in the instant case, due to the lack of clarity in the legal framework and the lack of procedural guarantees relating concretely to the protection of LPP, already fell short of the requirements flowing from the criterion that the interference must be in accordance with the law within the meaning of Article 8 § 2 of the Convention. Having drawn that conclusion, it is not necessary for the Court to review compliance with the other requirements under that provision. 58. In the light of the above, the Court finds that there has been a violation of Article 8 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 59. In his application to the Court the applicant complained that the proceedings relating to the search of his smart phone amounted to a violation of the rights secured to him under Article 6 § 3 of the Convention. In his subsequent observations the applicant informed the Court that he had meanwhile been acquitted of the criminal charges against him (see paragraph 28 above), and admitted that he could therefore no longer claim to be a victim of a violation of Article 6. The Court does not find grounds for calling this into question and accordingly finds that the complaint under Article 6 must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 61. The applicant claimed non-pecuniary damages to an amount assessed at the Court’s discretion. He did not claim pecuniary damages. 62. The Government did not contest that, should the Court find a violation of Article 8 of the Convention, there might be grounds for awarding just satisfaction in respect of non-pecuniary damage. 63. The Court, in view of the relatively technical nature of the violation found and the circumstances of the case, considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non ‑ pecuniary damage which the applicant may have suffered. Costs and expenses 64. The applicant also claimed 101,937.50 Norwegian kroner –approximately EUR 9,500 for costs incurred before the Court. 65. The Government accepted that the applicant should be entitled to recover his costs in the event that the Court found a violation of Article 8 of the Convention, but maintained that the amount should be reduced since the applicant had accepted that he had no valid claim under Article 6. 66. The Court notes that the applicant requested legal aid, but did not upon its request submit the requisite information. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the parties’ submissions and the above criteria, the Court considers it reasonable to award the sum of EUR 7,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant. Default interest 67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention in the applicant’s case. It had no basis to decide whether or not legal professional privilege had actually been compromised in his case. In the Court’s view, however, the lack of foreseeability in the instant case, due to the lack of clarity in the legal framework and the lack of procedural guarantees relating concretely to the protection of legal professional privilege, had already fallen short of the requirements flowing from the criterion that the interference must be in accordance with the law. |
895 | Private persons | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Procedural law and relevant practice 1. Russian Code of Civil Procedure of 14 November 2002 29. Following the acceptance of a statement of claim for examination, the judge makes a ruling on preparation of the case for a court hearing (Article 147). One of the tasks involved in preparing a case for a court hearing is to determine the law which should be applied in order to decide the case (Article 1 48). 30. When rendering a judgment, the court must evaluate the evidence and determine which of the facts important for the examination of the case have been established and which have not been established. It must also determine the legal relations between the parties and decide which law should be applied to the given case and whether the claim should be granted (Article 196 § 1). The court must then decide on the claims as submitted by the plaintiff. However, the court may go beyond those claims in instances provided for by the federal law (Article 196 § 3). 2. Practice of the Supreme Court of the Russian Federation 31. In its ruling of 24 June 2008 “ on the preparation of civil cases for a court hearing”, the Plenary of the Supreme Court of the Russian Federation held as follows: “ ... The courts ’ attention should be drawn to the fact that the preparation of cases for a court hearing is an independent and mandatory stage of the civil procedure which aims to provide for correct and prompt examination of cases. ... Courts should also bear in mind that each and every task involved in preparing a case for a court hearing as enumerated in Article 148 GPK RF [Code of Civil Procedure of the Russian Federation] is a mandatory element of this stage of civil procedure. Non-execution of any of those tasks might result in undue delays in the proceedings and to a judicial mistake. ... When determining the law and any other legal act which should be applied in order to decide the case and when determining the legal relations between the parties, it should be borne in mind that they should be determined on the basis of the totality of data: the subject of and grounds for the action, the defendant ’ s answer to the statement of claim, and other circumstances which have legal importance for taking a right decision on the case ... ” B. Material law Russian Civil Code of 1994, First Part, as worded at the material time Article 152. Protection of Honour, Dignity and Professional Reputation “1. Every citizen shall have the right to claim through a court that material discrediting his honour, dignity or professional reputation be rebutted, unless the person who has disseminated such information can prove that it has a connection with reality. ... If the said material is contained in a document issued by an organisation, that document shall be liable to exchange or recall. In other cases, the procedure for rebuttal or correction shall be ruled on by the court. ... 5. Every citizen with respect to whom material discrediting his honour, dignity or professional reputation has been disseminated shall have the right, in addition to rebuttal or correction of the given information, also to claim compensation for loss and for non-pecuniary damage caused by the dissemination of that material ... ” Article 152.1. Protection of the Citizen ’ s Image “The publication and further use of a citizen ’ s image (including his photographs, audio records or works of fine art in which he is depicted) are admissible only with his consent. ... Such consent is not required in cases where : 1) the image is used in the interests of the State, or in social or other public interests; 2) the citizen ’ s image is obtained when shooting a film in a place open to the public or during a public event (meeting, congress, conference, concert, performance, sports competition and similar event), with the exception of cases where such an image is the principal object of use; 3) the citizen has posed in return for payment.” THE LAW I. THE APPLICANT ’ S STANDING TO ACT ON BEHALF OF HER SON IN THE PROCEEDINGS BEFORE THE COURT 32. The Government did not dispute that the applicant had standing to lodge the present application not only on her own behalf but also on behalf of her son. The Court sees no reason to find otherwise and therefore accepts that the applicant has standing to lodge the present application on her own behalf and also on behalf of her minor son. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 33. The applicant complained under Article 8 of the Convention, on her behalf and on behalf of her minor son, that the unauthorised publication of her son ’ s photograph in a booklet produced for the Municipal Child Protection Centre had infringed their private and family life. She further complained that the domestic courts had failed to protect her and her son ’ s rights to respect for their private and family life. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The parties ’ submissions 34. The Government raised two objections as to the admissibility of the application. 35. First, the application was incompatible ratione personae with the provisions of the Convention, since it had been directed against private parties. In particular, the boy ’ s photograph had been taken by a private photographer and published by a private company. The applicant brought court proceedings against those private parties and not against State authorities. The Centre, which had ordered the booklet, took part in those proceedings as a third party. 36. Secondly, the applicant had not exhausted domestic remedies available to her in respect of her complaint of a violation of her son ’ s right to respect for his family and private life. In particular, in her claim lodged before the domestic courts the applicant complained that her honour and reputation had been discredited by the publication of her son ’ s photograph in the booklet. However, as was pointed out by the appeal court, the applicant had not raised any claim under Article 152.1 of the Civil Code (see Relevant domestic law above) about the allegedly unlawful use of her son ’ s photograph. The domestic courts examined the applicant ’ s claims as they had been presented in her statement of claim, in accordance with Article 196 § 3 of the Code of Civil Procedure (see Relevant domestic law above). 37. The applicant did not comment. 2. The Court ’ s assessment (a) Compatibility ratione personae 38. In accordance with Article 3 4 of the Convention, the Court can only deal with applications alleging that State bodies have committed a violation of the rights guaranteed by the Convention. The Court has no jurisdiction to consider applications directed against private individuals or businesses (see, among other authorities, Reynbakh v. Russia, no. 23405/03, § 18, 29 September 2005). 39. In the present case, the applicant ’ s complaint is twofold. First, she complained that the publication of her minor son ’ s photograph in the booklet had infringed their private and family life. Secondly, she complained that the domestic authorities had failed to protect her and her son ’ s right to respect for their private and family life. 40. Regarding the first part of the applicant ’ s complaint, the Court notes that it has been established in the domestic proceedings that the booklet had been prepared and published by a private publishing company at the request of the Centre, a State body. The photograph had been put on the front page of the booklet by Mr P., who had been contracted to work for the publishing company. The applicant initially brought civil proceedings against the Centre, but subsequently she agreed with the domestic court that the Centre was not a proper defendant in the case and had to be replaced by the publishing company and Mr P. Therefore, even assuming that the Centre might have had a share of responsibility in that the boy ’ s photograph had appeared on the front page of its booklet, the applicant did not pursue her claims against it. As for the publishing company, it was not owned by the State, did not exercise any public functions and the State does not appear to have had effective control of it. It follows that in so far as the applicant complains of the actions of that company, this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. 41. However, the second limb of the applicant ’ s complaint was directed against the domestic authorities, who had dealt with her complaints concerning the alleged violation of her and her son ’ s right to respect for their private and family life, and is therefore compatible ratione personae with the provisions of the Convention. It follows that the Government ’ s objection to this effect in respect of that part of the application must be dismissed. (b) Exhaustion of domestic remedies 42. The purpose of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with further references). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, §142, ECHR 2010). 43. The Court observes that in her statement of claim submitted to the District Court on 20 March 2008, the applicant complained that her honour, dignity and professional reputation had been damaged by the unlawful publication of her minor son ’ s photograph in the booklet. In particular, she submitted that the photograph of her son had been published in the booklet without her knowledge and consent, and had subsequently been widely distributed (see paragraph 15 above). It is true that the applicant did not explicitly rely on Article 152.1 of the Civil Code. However, it was for the District Court, during the preparation of the case for a court hearing, to determine which law to apply in order to decide the case on the basis of the totality of the data at its disposal (see paragraphs 29 and 30 in Relevant domestic law above). Furthermore, it appears from the records of the court hearings that the applicant ’ s representative, G., had expressly complained to the District Court that the photograph had been published without the applicant ’ s consent, in breach of Article 152.1. of the Civil Code (see paragraph 21 above). The Court further notes that in her grounds of appeal against the judgment of 20 June 2008, the applicant also complained that the District Court had not examined the case from the standpoint of Article 152.1. of the Civil Code (see paragraph 25 above). Having regard to the above, the Court considers that the applicant raised her complaint of unlawful publication and dissemination of her son ’ s photograph before the domestic courts and therefore provided them with an opportunity to put right the alleged violation of her and her son ’ s rights under Article 8 of the Convention. 44. Accordingly, the Court dismisses the Government ’ s objection as to non-exhaustion of domestic remedies. (c ) Conclusion 45. Having regard to its findings in paragraph 40 above, the Court considers that the applicant ’ s complaint about the actions of the publishing company is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. 46. Having regard to its findings in paragraphs 41 and 44 above, the Court considers that the applicant ’ s complaint about the domestic authorities ’ failure to protect her and her son ’ s rights to respect for their private and family life is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 47. The Government considered that there had been no violation of the rights of the applicant and her son to respect for their private and family life. 48. They submitted that in the case of Peck v. the United Kingdom (no. 44647/98, §§ 61-63, ECHR 2003 ‑ I) the Court had identified the following criteria to be applied in order to decide whether the publication of a photograph should be regarded as an interference with private life: whether the photograph related to private or public matters, and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public. Applying those criteria to the present case, the Government submitted that the photograph did not relate to any private matter concerning the applicant – it did not show any scene from her private and everyday life and it had been taken in a public place with the applicant ’ s permission. Moreover, it had not been widely disseminated and its publication had had no impact on the applicant ’ s relationship with others. Referring to the case of Friedl v. Austria ( 31 January 1995, §§ 50-51, Series A no. 305 ‑ B ), the Government also pointed out that the booklet did not contain any information as to the identity of the applicant ’ s son and no action had been taken to identify the boy from the photograph. The publication of the photograph also served a noble purpose, namely to find adoptive families for orphans. 49. The Government further submitted that even assuming that the State ’ s positive obligations in respect of the private and family life of the applicant and her son were engaged in the present case, Russia had complied with its positive obligations. The domestic courts had examined the applicant ’ s claims under Article 152 of the Civil Code and had come to the conclusion that the information contained in the booklet had not adversely affected the applicant ’ s honour, dignity and reputation. 50. The applicant maintained her complaint. 2. The Court ’ s assessment (a) General principles 51. The “notion” of private life within the meaning of Article 8 of the Convention is a broad concept which extends to a number aspects relating to personal identity, such as a person ’ s name or image, and furthermore includes a person ’ s physical and psychological integrity; (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 95, ECHR 2012, with further references). The Court has also accepted that a person ’ s reputation (see Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007) and honour (see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007) form part of his or her personal identity and psychological integrity and therefore also fall within the scope of his or her “private” life. In order for Article 8 to come into play, the attack on personal reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009 and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012 ). 52. Regarding photographs, the Court has stated that a person ’ s image constitutes one of the chief attributes of his or her personality, as it reveals the person ’ s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one ’ s image is thus one of the essential components of personal development and presupposes the right to control the use of that image. It mainly presupposes the individual ’ s right to control the use of that image, including the right to refuse publication thereof (see Reklos and Davourlis v. Greece, no. 1234/05, § 40, 15 January 2009). 53. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves. That also applies to the protection of a person ’ s picture against abuse by others (see Von Hannover (no. 2), cited above, § 98, with further references). (b) Application of those principles to the present case 54. It is common ground between the parties that the photograph published in the booklet was a photograph of the applicant ’ s son taken when the boy had been on holiday, and that 200 copies of the booklet with the photograph of the boy were published and a number of them were distributed in the Usolskiy District of the Perm region. Furthermore, it was not disputed that the publication of the photograph was not accompanied by any information or comments concerning the applicant herself. Nevertheless, the Court considers that the effect of the publication of the photograph on the applicant ’ s reputation can be accepted to have attained a certain level of seriousness and prejudiced the applicant ’ s enjoyment of her right to respect for her private life. Having regard to the above, the Court considers that the publication of the photograph falls within the scope of the applicant ’ s and her son ’ s “private life” within the meaning of Article 8 of the Convention. 55. The main issue in the present case is whether the domestic courts afforded the applicant and her son sufficient protection of their private life. 56. The Court observes that in taking their decision to dismiss the applicant ’ s claims, the domestic courts established that the photograph had been taken with the applicant ’ s authorisation and that the applicant had not placed any restrictions or conditions on its use. However, they failed to examine whether she had given her consent to the publication of the photograph. 57. The Court further notes that the present case concerns the publication of a photograph which, at least by inference, can be seen to suggest that the applicant ’ s son was an orphan. Consequently, the impugned publication could have given its readers the false impression that the applicant ’ s son had no parents or that his parents had abandoned him. Any of these or other similar false impressions could prejudice the public perception of the family bond and relations between the applicant and her son. 58. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 60. The applicant claimed 5, 200 Russian roubles (RUB) in compensation for the sums recovered from her in favour of the Centre by the decision of 20 January 2009. She also claimed RUB 300,000 in respect of non-pecuniary damage. 61. The Government contested those claims. 62. The Court awards the applicant 130 euros (EUR) in respect of pecuniary damage and EUR 7,5 00 in respect of non-pecuniary damage. B. Costs and expenses 63. The applicant also claimed RUB 11, 200 for the costs and expenses incurred before the domestic courts. 64. The Government submitted that the applicant had not provided any documents to confirm that those expenses had been incurred. 65. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 100 covering costs under all heads. C. Default interest 66. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found in particular that the Russian courts had failed to examine whether the applicant had given her consent for the publication of the photograph, focusing instead on the authorisation she had given that her son be photographed. The Court also highlighted the false impressions and inferences which could be drawn from the context of the photograph, namely that the child pictured had no parents or had been abandoned by his parents, and the effect that that could have on public perception of the applicant’s relationship with her son. |
1,010 | Cases concerning the international military operations in Iraq during the Second Gulf War | II. RELEVANT INTERNATIONAL LAW MATERIALS A. Relevant provisions of international humanitarian law 42. Articles 42 and 43 of the Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907) (“the Hague Regulations”) provide as follows: Article 42 “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Article 43 “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” 43. The Convention (IV) relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949) (“the Fourth Geneva Convention”) defines “protected persons” as follows: Article 4 “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. ...” It contains the following provisions in relation to security measures and internment: Article 27 “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.” Article 41 “Should the Power in whose hands protected persons may be consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43. In applying the provisions of Article 39, second paragraph, to the cases of persons required to leave their usual places of residence by virtue of a decision placing them in assigned residence elsewhere, the Detaining Power shall be guided as closely as possible by the standards of welfare set forth in Part III, section IV of this Convention.” Article 42 “The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. If any person, acting through the representatives of the Protecting Power, voluntarily demands internment and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.” Article 43 “Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.” Article 64 “The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.” Article 78 “If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power. Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.” The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, provides in Article 75 § 3: “Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.” B. Relevant provisions of the Charter of the United Nations of 1945 44. The Preamble to the Charter of the United Nations states, inter alia : “We, the peoples of the United Nations, Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, ...” Article 1 sets out the purposes of the United Nations, as follows: “1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; ... 3. To achieve international cooperation in ... promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; ...” Article 24 provides, inter alia : “1. In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. 2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII and XII.” Article 25 of the Charter provides: “The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” 45. Chapter VII of the Charter is entitled “Action with respect to threats to the peace, breaches of the peace and acts of aggression”. Article 39 provides: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” 46. Articles 41 and 42 read as follows: Article 41 “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” Article 42 “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of members of the United Nations.” Articles 43 to 45 provide for the conclusion of agreements between member States and the Security Council for the former to contribute to the latter the land and air forces necessary for the purpose of maintaining international peace and security. No such agreements have been concluded. Chapter VII continues: Article 48 “1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the members of the United Nations or by some of them, as the Security Council may determine. 2. Such decisions shall be carried out by the members of the United Nations directly and through their action in the appropriate international agencies of which they are members.” Article 49 “The members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.” Article 103 of the Charter reads as follows: “In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” C. Relevant provisions of the Vienna Convention on the Law of Treaties of 1969 47. Article 30 is entitled “Application of successive treaties relating to the same subject matter” and its first paragraph reads as follows: “1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs. ...” D. Relevant case-law of the International Court of Justice 48. The International Court of Justice has held Article 103 of the Charter of the United Nations to mean that the Charter obligations of United Nations member States prevail over conflicting obligations from another international treaty, regardless of whether the latter treaty was concluded before or after the Charter of the United Nations or was only a regional arrangement (see Nicaragua v. United States of America, ICJ Reports 1984, p. 392, at § 107). The International Court of Justice has also held that Article 25 of the Charter means that United Nations member States’ obligations under a Security Council resolution prevail over obligations arising under any other international agreement (see Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America and Libyan Arab Jamahiriya v. United Kingdom, ICJ Reports 1992, vol. 1, p. 16, at § 42, and p. 113 at § 39 (hereinafter “ Lockerbie ”). 49. In its Advisory Opinion Legal Consequences for States of the Continued Presence of South Africa in Namibia, notwithstanding Security Council Resolution 276 (1970), the International Court of Justice observed, in connection with the interpretation of United Nations Security Council resolutions: “114. It has also been contended that the relevant Security Council resolutions are couched in exhortatory rather than mandatory language and that, therefore, they do not purport to impose any legal duty on any State nor to affect legally any right of any State. The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.” 50. In its judgment Armed Activities on the Territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda) of 19 December 2005, the International Court of Justice considered whether, during the relevant period, Uganda was an “Occupying Power” of any part of the territory of the Democratic Republic of the Congo, within the meaning of customary international law, as reflected in Article 42 of the Hague Regulations (§§ 172-73 of the judgment). The International Court of Justice found that Ugandan forces were stationed in the province of Ituri and exercised authority there, in the sense that they had substituted their own authority for that of the Congolese government (§§ 174-76). The International Court of Justice continued: “178. The Court thus concludes that Uganda was the Occupying Power in Ituri at the relevant time. As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party. 179. The Court, having concluded that Uganda was an Occupying Power in Ituri at the relevant time, finds that Uganda’s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account. 180. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation.” E. Relevant case-law of the European Court of Justice 51. The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (Joined Cases C-402/05 P and C-415/05 P) (hereinafter “ Kadi ”) concerned a complaint about the freezing of assets under European Community regulations adopted to reflect United Nations Security Council Resolutions 1267 (1999), 1333 (2000) and 1390 (2002), which dictated, inter alia, that all States were to take measures to freeze the funds and other financial assets of individuals and entities associated with Osama bin Laden, the al-Qaeda network and the Taliban. Those individuals, including the applicants, were identified by the Sanctions Committee of the United Nations Security Council. The applicants argued that the regulations were ultra vires because the assets freezing procedure violated their fundamental rights to a fair trial and to respect for their property, as protected by the Treaty establishing the European Community. 52. The Court of First Instance rejected the applicant’s claims and upheld the regulations, essentially finding that the effect of Article 103 of the Charter of the United Nations was to give United Nations Security Council resolutions precedence over other international obligations (save jus cogens ), which included the Treaty establishing the European Community. Thus, the Court of First Instance concluded that it had no authority to review, even indirectly, United Nations Security Council resolutions in order to assess their conformity with fundamental rights. 53. Mr Kadi appealed to the European Court of Justice where his case was considered together with another appeal by the Grand Chamber, which gave judgment on 3 September 2008. The European Court of Justice held that European Community law formed a distinct, internal legal order and that it was competent to review the lawfulness of a Community regulation within that internal legal order, despite the fact that the regulation had been enacted in response to a United Nations Security Council resolution. It followed that, while it was not for the “Community judicature” to review the lawfulness of United Nations Security Council resolutions, they could review the act of a member State or Community organ that gave effect to that resolution; doing so “would not entail any challenge to the primacy of the resolution in international law”. The European Court of Justice recalled that the European Community was based on the rule of law, that fundamental rights formed an integral part of the general principles of law and that respect for human rights was a condition of the lawfulness of Community acts. The obligations imposed by an international agreement could not have the effect of prejudicing the “constitutional principles of the European Community Treaty”, which included the principle that all Community acts had to respect fundamental rights. The regulations in question, which provided for no right to challenge a freezing order, failed to respect fundamental rights and should be annulled. F. Relevant case-law of the United States Supreme Court 54. In Munaf v. Geren (2008) 128 SCt 2207, the United States Supreme Court examined claims for habeas corpus relief from two American citizens who voluntarily travelled to Iraq and allegedly committed crimes there. They were each arrested in October 2004 by American forces operating as part of the Multinational Force, given hearings before Multinational Force Tribunals composed of American officers, who concluded that they posed a threat to Iraq’s security, and placed in the custody of the United States military operating as part of the Multinational Force. It was subsequently decided to transfer the detainees to the custody of the Iraqi authorities to stand trial on criminal charges before the Iraqi courts, and the detainees sought orders from the Federal Courts prohibiting this, on the ground that they risked torture if transferred to Iraqi custody. It was argued on behalf of the US government that the Federal Courts lacked jurisdiction over the detainees’ petitions because the American forces holding them operated as part of a Multinational Force. The Supreme Court observed that: “The United States acknowledges that Omar and Munaf are American citizens held overseas in the immediate ‘physical custody’ of American soldiers who answer only to an American chain of command. The MNF-I itself operates subject to a unified American command. ‘[A]s a practical matter’, the Government concedes, it is ‘the President and the Pentagon, the Secretary of Defence, and the American commanders that control what ... American soldiers do’, ... including the soldiers holding Munaf and Omar. In light of these admissions, it is unsurprising that the United States has never argued that it lacks the authority to release Munaf or Omar, or that it requires the consent of other countries to do so.” The Supreme Court concluded that it considered “these concessions the end of the jurisdictional inquiry”. It held that American citizens held overseas by American soldiers subject to a US chain of command were not precluded from filing habeas corpus petitions in the Federal Courts. However, it further decided that Federal District Courts could not exercise their habeas corpus jurisdiction to enjoin the United States of America from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign State to that sovereign State for criminal prosecution. The petitioners’ allegations that their transfer to Iraqi custody was likely to result in torture were a matter of serious concern but those allegations generally had to be addressed by the political branches, not the judiciary. G. Relevant materials of the International Law Commission 55. The International Law Commission was established by the United Nations General Assembly in 1948 for the “promotion of the progressive development of international law and its codification”. It consists of thirty-four experts on international law, elected to the Commission by the United Nations General Assembly from a list of candidates nominated by governments of member States. 56. In Article 5 of its Draft Articles on the Responsibility of International Organisations (adopted in May 2004), the International Law Commission stated as follows: “ Conduct of organs or agents placed at the disposal of an international organisation by a State or another international organisation The conduct of an organ of a State or an organ or agent of an international organisation that is placed at the disposal of another international organisation shall be considered under international law an act of the latter organisation if the organisation exercises effective control over that conduct.” The International Law Commission further stated, in paragraphs 1 and 6 to 7 of its commentary on this Article: “1. When an organ of a State is placed at the disposal of an international organisation, the organ may be fully seconded to that organisation. In this case the organ’s conduct would clearly be attributable only to the receiving organisation ... Article 5 deals with the different situation in which the lent organ or agent still acts to a certain extent as organ of the lending State or as organ or agent of the lending organisation. This occurs for instance in the case of military contingents that a State placed at the disposal of the United Nations for a peacekeeping operation, since the State retains disciplinary powers and criminal jurisdiction over the members of the national contingent. In this situation the problem arises whether a specific conduct of the lent organ or agent has to be attributed to the receiving organisation or to the lending State or organisation. ... 6. Practice relating to peacekeeping forces is particularly significant in the present context because of the control that the contributing State retains over disciplinary matters and criminal affairs. This may have consequences with regard to attribution of conduct. ... Attribution of conduct to the contributing State is clearly linked with the retention of some powers by that State over its national contingent and thus on the control that the State possesses in the relevant respect. 7. As has been held by several scholars, when an organ or agent is placed at the disposal of an international organisation, the decisive question in relation to attribution of a given conduct appears to be who has effective control over the conduct in question. ...” 57. The report of the Study Group of the International Law Commission entitled “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law” (April 2006) stated, in respect of Article 103 of the Charter of the United Nations (footnotes omitted): “ (a) What are the prevailing obligations? 331. Article 103 does not say that the Charter prevails, but refers to obligations under the Charter. Apart from the rights and obligations in the Charter itself, this also covers duties based on binding decisions by United Nations bodies. The most important case is that of Article 25 that obliges member States to accept and carry out resolutions of the Security Council that have been adopted under Chapter VII of the Charter. Even if the primacy of Security Council decisions under Article 103 is not expressly spelled out in the Charter, it has been widely accepted in practice as well as in doctrine. The question has sometimes been raised whether also [Security] Council resolutions adopted ultra vires prevail by virtue of Article 103. Since obligations for member States of the United Nations can only derive out of such resolutions that are taken within the limits of its powers, decisions ultra vires do not give rise to any obligations to begin with. Hence no conflict exists. The issue is similar with regard to non-binding resolutions adopted by United Nations organs, including the Security Council. These are not covered by Article 103. ... (b) What does it mean for an obligation to prevail over another? 333. What happens to the obligation over which Article 103 establishes precedence? Most commentators agree that the question here is not of validity but of priority. The lower-ranking rule is merely set aside to the extent that it conflicts with the obligation under Article 103. This was how Waldock saw the matter during the ILC [International Law Commission] debates on Article 30 [of the Vienna Convention on the Law of Treaties]: ‘[T]he very language of Article 103 makes it clear that it presumes the priority of the Charter, not the invalidity of treaties conflicting with it.’ 334. A small number of authors have received a more extensive view of the effects of Article 103 – namely the invalidity of the conflicting treaty or obligation – on the basis of the view of the Charter as a ‘constitution’. A clear-cut answer to this question (priority or invalidity?) cannot be received from the text of Article 103. Yet the word ‘prevail’ does not grammatically imply that the lower-ranking provision would become automatically null and void, or even suspended. The State is merely prohibited from fulfilling an obligation arising under that other norm. Article 103 says literally that in case of a conflict, the State in question should fulfil its obligation under the Charter and perform its duties under other agreements in as far as compatible with obligations under the Charter. This also accords with the drafting materials of the Charter, which state that: ‘it would be enough that the conflict should arise from the carrying out of an obligation under the Charter. It is immaterial whether the conflict arises because of intrinsic inconsistency between the two categories of obligations or as the result of the application of the provisions of the Charter under given circumstances.’” H. The Copenhagen Process on the Handling of Detainees in International Military Operations 58. In 2007 the Danish government initiated the Copenhagen Process on the Handling of Detainees in International Military Operations. The Process is aimed at developing a multilateral approach to the treatment of detainees in military situations and it has attracted the involvement of at least twenty-eight States and a number of international organisations, including the United Nations, the European Union, NATO, the African Union and the International Committee of the Red Cross. The “non-paper”, prepared for the first Copenhagen Conference on 11 to 12 October 2007, stated by way of introduction: “The past decade has seen a significant change in the character of international military operations. They have developed from traditional peacekeeping operations under Chapter VI/VI ½ of the UN Charter, through peacemaking operations under Chapter VII, to a new type of operation in which military forces are acting in support of governments that need assistance to stabilise their countries or in support of the international administration of territory. In such operations, military forces may have to perform tasks which would normally be performed by national authorities, including detaining people in the context of both military operations and law enforcement. At the same time, the countries which are to be assisted frequently have difficulties fulfilling their human rights and humanitarian law obligations due to the internal problems. Normal modus operandi, including the transfer of detainees to local authorities, may therefore often not be possible as it may contradict the legal and political commitment of the troop-contributing countries. The handling of detainees thereby becomes a challenge in itself. If a sustainable solution to these challenges is not reached, it may have an impact on the ability of the military forces of other States to engage in certain types of operations. States therefore cannot disregard these challenges when contributing to ongoing or future operations of this nature. The main challenge is a basic one: how do troop-contributing States ensure that they act in accordance with their international obligations when handling detainees, including when transferring detainees to local authorities or to other troop-contributing countries? Solving this challenge is not simple, as it involves addressing a number of complicated and contested legal issues as well as complicated practical and political aspects. ...” The “non-paper” continued, under the heading “The legal basis [of detention]”: “The legal basis for military forces to detain persons typically derives from the mandate of a given operation. The types of operations relevant for this non-paper are typically based on a Chapter VII resolution of the United Nations Security Council [UNSC]. A UNSC resolution may contain or refer to text on detention, and supplementary regulation may be found, for example, in standard operating procedures, rules of engagement and status-of-forces agreements, although the latter would also represent an agreement with the territorial State. The wording in these instruments on detention, however, is not always clear, if the issue is addressed at all. In these circumstances, the mandate to detain is often based on the traditional wording of UNSC resolutions giving a military force the mandate to ‘take all necessary measures’ in order to fulfil the given task. When a UN resolution is unclear or contains no text on the mandate to detain, the right to self-defence may contain an inherent yet limited right to detain. However, this may leave the question open as to the scope of the mandate, e.g., what type of detention is possible in self-defence and whether it is possible only to detain persons for reasons of security or also to detain e.g. common criminals. There is therefore a need for the Security Council to address this issue and clearly establish the legal basis for the right of the force to detain in a given operation. A clear mandate on detention will improve the possibilities for soldiers on the ground to take the right decisions on detention matters and to avoid different interpretations on the understanding of an ambiguous SC resolution. This need is further underlined by the fact that the right to detain might subsequently be challenged in court, and that officials/soldiers of troop-contributing States may be subject to prosecution for unlawful confinement under the grave breaches regime of Geneva Convention (IV).” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 59. The applicant complained that he was held in internment by United Kingdom armed forces in Iraq between 10 October 2004 and 30 December 2007, in breach of Article 5 § 1 of the Convention. He did not pursue before the Court his complaint under Article 5 § 4 of the Convention, concerning the lack of judicial review of the detention, since proceedings on this issue were still pending before the domestic courts at the time the application was lodged (see paragraphs 23-24 above). 60. The Government contended that the internment was attributable to the United Nations and not to the United Kingdom, and that the applicant was not, therefore, within United Kingdom jurisdiction under Article 1 of the Convention. Further, and in the alternative, they submitted that the internment was carried out pursuant to United Nations Security Council Resolution 1546, which created an obligation on the United Kingdom to detain the applicant which, pursuant to Article 103 of the Charter of the United Nations, overrode obligations under the Convention. A. Admissibility 61. The Court considers that the question whether the applicant’s detention fell within the jurisdiction of the respondent State is closely linked to the merits of his complaint. It therefore joins this preliminary question to the merits. 62. It notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Jurisdiction 63. The applicant submitted that he fell within the United Kingdom’s jurisdiction under Article 1 of the Convention, which reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” The Government disagreed. (a) The parties’ submissions (i) The Government 64. The Government denied that the detention of the applicant fell within the United Kingdom’s jurisdiction. They submitted that he was detained at a time when United Kingdom forces were operating as part of a Multinational Force authorised by the United Nations Security Council and subject to the ultimate authority of the United Nations. In detaining the applicant, the British troops were not exercising the sovereign authority of the United Kingdom but the international authority of the Multinational Force, acting pursuant to the binding decision of the United Nations Security Council. The Government emphasised that the above approach to the questions of attribution and jurisdiction followed from the Court’s reasoning and decision in Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007 (hereinafter “ Behrami and Saramati ”) They submitted that Lord Bingham, with whom Baroness Hale and Lord Carswell agreed (see paragraph 18 above), failed to give proper effect to that decision of the Grand Chamber. Lord Rodger, however, had found the position as regards Iraq to be indistinguishable from that in Kosovo, as considered by the Court in Behrami and Saramati. The Government agreed with and relied upon his detailed reasoning and conclusion (see paragraph 19 above). 65. The Government emphasised that in Behrami and Saramati the Court had held that the effect of United Nations Security Council Resolution 1244 (1999) had been to delegate to willing organisations and United Nations member States the power to establish an international security presence in Kosovo. The United Nations Security Council had been acting under Chapter VII of the Charter of the United Nations when it authorised the NATO-led Kosovo Force (KFOR). Similarly, in its resolutions authorising the Multinational Force in Iraq (Resolutions 1511 and 1546; see paragraphs 31 and 35 above), the Security Council referred expressly to Chapter VII, made the necessary identification of a threat to international peace and security and, in response to this threat, authorised a Multinational Force under unified command to take “all necessary measures to contribute to the maintenance of security and stability of Iraq”. 66. The Government continued by pointing out that in Behrami and Saramati (cited above), the Court had identified that the “key question” to determine whether the delegation in question was sufficiently limited to meet the requirements of the Charter, and for the acts of the delegate entity to be attributable to the United Nations, was whether “the [Security Council] retained ultimate authority and control so that operational command only was delegated” (see Behrami and Saramati, cited above, §§ 132 and 133). The Court had further identified (ibid., § 134) five factors which established that the United Nations had retained “ultimate authority and control” over KFOR. In the Government’s submission, the five factors applied equally in respect of the United Nations Security Council’s authorisation of the Multinational Force to use force in Iraq. Firstly, Chapter VII of the Charter allowed the United Nations Security Council to delegate its powers under Chapter VII to an international security presence made up of forces from willing member States. Secondly, the relevant power, conferred by Chapter VII, was a delegable power. Thirdly, the delegation to the Multinational Force was not presumed or implicit, but prior and explicit in Resolutions 1511, 1546 and subsequent resolutions. The applicant was detained several months after the adoption of Resolution 1546. Fourthly, Resolution 1546 fixed the mandate with adequate precision, setting out the tasks to be undertaken by the Multinational Force. Resolution 1546 in fact defined the tasks to be carried out by the authorised international force with greater precision than Resolution 1244. Fifthly, the Multinational Force, through the United States of America, was required to report to the Security Council on a quarterly basis. Further, the mandate for the Multinational Force was subject to review and control by the Security Council by reason of the requirement that the mandate be reviewed by the Security Council after no less than twelve months and that it expire after certain specified events. The Security Council therefore retained greater control over the Multinational Force than it did over KFOR under Resolution 1244. 67. A further question which the Court had considered in Behrami and Saramati was whether the level of control exercised by the troop-contributing nations in detaining Mr Saramati was such as to detach the troops from the international mandate of the Security Council. In the present case, the Government submitted, the applicant’s detention was effected and authorised throughout by Multinational Force personnel acting as such, including United Kingdom forces. The “structural” involvement of the United Kingdom in retaining some authority over its troops, as did all troop-contributing nations, was compatible with the effectiveness of the unified command and control exercised over the Multinational Force. There was no evidence that the United Kingdom interfered with respect to the applicant’s detention in such a way that the acts of the United Kingdom troops in detaining him were detached from the Security Council mandate. In the Government’s view, no relevant distinction could be drawn between the operational chain of command in the Multinational Force and that which operated in the case of KFOR (see Behrami and Saramati, cited above, § 135). In the Government’s submission, the continued detention of the applicant after June 2006 was required to be authorised by the co-chairs of the Joint Detention Committee, namely the Prime Minister of Iraq and the General Officer Commanding Multinational Force (a United States General), and was in fact so authorised. That authorisation was in accordance with applicable Iraqi law and the United Nations mandate conferred by Resolution 1546, which recorded that the Multinational Force was present in Iraq at the request of the government of Iraq and which expressly referred to arrangements put in place for a “security partnership” between the Iraqi government and the Multinational Force. United Kingdom troops played no part in the authorisation. 68. The Government contended that to apply the Convention to the acts of United Kingdom troops, and those of other Contracting States who contributed troops to the Multinational Force, in the context of the Multinational Force’s multinational and unified command structure, and in the context of its close coordination and cooperation with Iraqi forces, would have introduced serious operational difficulties. It would have impaired the effectiveness of the Multinational Force in its operations, which ranged from combat operations conducted together with Iraqi forces to the arrest of suspected criminals and terrorists. It would also have given rise to intractable issues as to how the Convention would apply to operations conducted jointly by forces from Contracting and non-Contracting States including, for example, questions as to what degree of involvement of personnel in joint actions would be required to engage the responsibility of the Contracting State. Moreover, in addition to United Nations peacekeeping forces (which were subsidiary organs of the United Nations) there were currently seven international military forces which had been authorised by the United Nations Security Council to contribute to the maintenance of security in foreign States, including the International Security Assistance Force in Afghanistan. To conclude that the acts of United Kingdom troops deployed as part of the Multinational Force in Iraq were attributable to the United Kingdom would introduce real uncertainty about the operation of the Convention to United Nations mandated operations and would risk in future deterring Contracting Parties from contributing troops to forces authorised by the United Nations Security Council, to the detriment of its mission to secure international peace and security. (ii) The applicant 69. The applicant pointed out that the Government had made an express concession during the domestic proceedings that the applicant was within the Article 1 jurisdiction of the United Kingdom since he was detained in a British-run military prison. However, following the Grand Chamber’s decision in Behrami and Saramati (cited above), the Government had argued for the first time before the House of Lords that the United Kingdom did not have jurisdiction because the detention was attributable to the United Nations and not the United Kingdom. The applicant underlined that, until the proceedings before the House of Lords, the Government had never argued in any case that the detention of individuals held in the custody of United Kingdom forces in Iraq was attributable to any entity other than the United Kingdom. The Court should therefore treat with some scepticism the Government’s argument that attributing the detention to the United Kingdom would “introduce serious operational difficulties”. In any event, the problems adverted to by the Government were far from intractable. In a multi-State operation, responsibility lies where effective command and control is vested and practically exercised. Moreover, multiple and concurrent attribution was possible in respect of conduct deriving from the activity of an international organisation and/or one or more States. The applicant resisted the Government’s conclusion that “the Convention was not designed, or intended, to cover this type of multinational military operation conducted under the overall control of an international organisation such as the United Nations”. On the contrary, the applicant contended that the Court’s case-law established that Contracting States could not escape their responsibilities under the Convention by transferring powers to international organisations or creating joint authorities against which Convention rights or an equivalent standard could not be secured. 70. The applicant emphasised that the majority of the House of Lords held that his detention was attributable to the United Kingdom and not the United Nations. He adopted and relied upon their reasoning and conclusions. He submitted that there was no warrant for the Government’s suggestion that the United Nations had assumed ultimate, still less effective, authority and control over the United Kingdom forces in Iraq. The position was clearly distinguishable from that considered by the Court in Behrami and Saramati (cited above). 71. The invasion of Iraq by the United States-led Coalition Forces in March 2003 was not a United Nations operation. This was the first, stark contrast with the position in Kosovo, where United Nations Security Council Resolution 1244 was a prior and explicit coercive measure adopted by the United Nations Security Council acting under Chapter VII of the Charter of the United Nations as the “solution” to the identified threat to international peace and security in Kosovo (see Behrami and Saramati, cited above, § 129). The respective roles and responsibilities of the Coalition Forces and the United Nations in Iraq were defined as early as 8 May 2003, in a letter from the Permanent Representatives of the United States of America and the United Kingdom to the President of the Security Council (see paragraph 27 above). The Coalition Forces would work through the Coalition Provisional Authority (CPA), which they had created, to provide for security in Iraq. The role of the United Nations was recognised as being vital in “providing humanitarian relief, in supporting the reconstruction of Iraq, and in helping in the formation of an Iraqi interim authority”. Those respective roles and responsibilities were repeated in United Nations Security Council Resolution 1483 (see paragraph 29 above). The applicant submitted that it was wrong of the Government to underplay the significance of Resolution 1483, which was adopted under Chapter VII of the Charter and expressly set out the roles of all parties concerned. 72. In the applicant’s submission, the language of United Nations Security Council Resolution 1511 did not support the Government’s interpretation that, through it, responsibility shifted from the United Kingdom to the United Nations. Paragraph 1 of Resolution 1511 recognised that the CPA, and not the United Nations, would continue to exercise authority and control until a representative government could be established. Paragraph 8 resolved that the United Nations would strengthen its vital role, by reference to the tasks outlined in Resolution 1483, namely humanitarian relief, reconstruction, and working towards the establishment of a representative government. Had the United Nations intended fundamentally to alter the legal position by assuming ultimate control and authority for the Coalition Forces in Iraq it was, in the applicant’s view, inconceivable that it would not have referred to this when expressly addressing the need to strengthen its role in Iraq. At paragraph 13 of Resolution 1511, where the United Nations Security Council authorised a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of peace and security, this was a simple authorisation and not a delegation. There was no seizing of effective, or even ultimate, control and authority by the United Nations Security Council. The unified command over the Multinational Force was, as it had always been, under the control and authority of the United States of America and the United Kingdom. Similarly, Resolution 1546 drew a clear distinction between the respective roles of the United Nations and the Multinational Force. Moreover, the wording of the letter from the US Secretary of State to the President of the United Nations Security Council, annexed to Resolution 1546, entirely undermined any suggestion that the Multinational Force was, or was soon to be, under United Nations authority and control. (iii) The third-party interveners 73. The non-governmental organisations Liberty and JUSTICE, third-party interveners submitted that, as a matter of law, conduct stemming from the work of an international organisation could be attributable to (a) the international organisation alone; (b) a State or States Parties to the international organisation and sufficiently involved in the conduct; or (c) both the international organisation and the State or States Parties. Whether the conduct in question fell to be characterised as (a), (b) or (c) would, most often, be essentially a matter of fact and dependent on the specific circumstances of each individual case. In this context, the highly fact-sensitive decision in Behrami and Saramati (cited above) needed to be handled with care. Moreover, it would appear that the Court’s approach in Behrami and Saramati followed from the way in which the case was argued before it. Since the applicants argued that KFOR was the entity responsible for the relevant acts of detention and de-mining, the Court did not consider whether the States had effective control over the conduct in their own right as sovereign States. (b) The Court’s assessment 74. Article 1 of the Convention reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” As provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” (“ reconnaître ” in the French text) the listed rights and freedoms to persons within its own “jurisdiction” (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 66, ECHR 2001 ‑ XII). “Jurisdiction” under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII). 75. The Court notes that, before the Divisional Court and the Court of Appeal in the first set of domestic proceedings brought by the applicant, the Government accepted that he fell within United Kingdom jurisdiction under Article 1 of the Convention during his detention in a British-run military prison in Basra, south-east Iraq. It was only before the House of Lords that the Government argued, for the first time, that the applicant did not fall within United Kingdom jurisdiction because his detention was attributable to the United Nations rather than to the United Kingdom. The majority of the House of Lords rejected the Government’s argument and held that the internment was attributable to British forces (see paragraphs 16-18 above). 76. When examining whether the applicant’s detention was attributable to the United Kingdom or, as the Government submit, the United Nations, it is necessary to examine the particular facts of the case. These include the terms of the United Nations Security Council resolutions which formed the framework for the security regime in Iraq during the period in question. In performing this exercise, the Court is mindful of the fact that it is not its role to seek to define authoritatively the meaning of provisions of the Charter of the United Nations and other international instruments. It must nevertheless examine whether there was a plausible basis in such instruments for the matters impugned before it (see Behrami and Saramati, cited above, § 122). The principles underlying the Convention cannot be interpreted and applied in a vacuum and the Court must take into account relevant rules of international law (ibid.). It relies for guidance in this exercise on the statement of the International Court of Justice in paragraph 114 of its Advisory Opinion Legal Consequences for States of the Continued Presence of South Africa in Namibia, notwithstanding Security Council Resolution 276 (1970) (hereinafter “ Namibia ”) (see paragraph 49 above), indicating that a United Nations Security Council resolution should be interpreted in the light not only of the language used but also the context in which it was adopted. 77. The Court takes as its starting point that, on 20 March 2003, the United Kingdom together with the United States of America and their Coalition partners, through their armed forces, entered Iraq with the aim of displacing the Ba’ath regime then in power. At the time of the invasion, there was no United Nations Security Council resolution providing for the allocation of roles in Iraq in the event that the existing regime was displaced. Major combat operations were declared to be complete by 1 May 2003 and the United States of America and the United Kingdom became Occupying Powers within the meaning of Article 42 of the Hague Regulations (see paragraph 42 above). As explained in the letter dated 8 May 2003 sent jointly by the Permanent Representatives of the United Kingdom and the United States of America to the President of the United Nations Security Council (see paragraph 27 above), the United States of America and the United Kingdom, having displaced the previous regime, created the CPA “to exercise powers of government temporarily”. One of the powers of government specifically referred to in the letter of 8 May 2003 to be exercised by the United States of America and the United Kingdom through the CPA was the provision of security in Iraq. The letter further stated that “[t]he United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall, inter alia, provide for security in and for the provisional administration of Iraq, including by ... assuming immediate control of Iraqi institutions responsible for military and security matters”. The letter acknowledged that the United Nations had “a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq, and in helping in the formation of an Iraqi interim authority” and stated that the United States of America, the United Kingdom and Coalition partners were ready to work closely with representatives of the United Nations and its specialised agencies and would also welcome the support and contributions of member States, international and regional organisations, and other entities, “under appropriate coordination arrangements with the Coalition Provisional Authority”. In its first legislative act, CPA Regulation No. 1 of 16 May 2003, the CPA declared that it would “exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability” (see paragraph 28 above). 78. The first United Nations Security Council resolution after the invasion was Resolution 1483, adopted on 22 May 2003 (see paragraph 29 above). In the Preamble, the Security Council noted the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom and recognised that the United States of America and the United Kingdom were Occupying Powers in Iraq, under unified command (the CPA), and that specific authorities, responsibilities, and obligations applied to them under international humanitarian law. The Security Council noted further that other States that were not Occupying Powers were working or might in the future work under the CPA, and welcomed the willingness of member States to contribute to stability and security in Iraq by contributing personnel, equipment and other resources “under the Authority”. Acting under Chapter VII of the Charter of the United Nations, the Security Council called upon the Occupying Powers, through the CPA, “to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability”. The United Kingdom and the United States of America were encouraged “to inform the Council at regular intervals of their efforts under this Resolution”. The Preamble to Resolution 1483 recognised that the United Nations were to “play a vital role in humanitarian relief, the reconstruction of Iraq and the restoration and establishment of national and local institutions for representative governance”. The Secretary-General of the United Nations was requested to appoint a Special Representative for Iraq, whose independent responsibilities were to include, inter alia, reporting regularly to the Security Council on his activities under this Resolution, coordinating activities of the United Nations in post-conflict processes in Iraq and coordinating among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq. Resolution 1483 did not assign any security role to the United Nations. The Government does not contend that, at this stage in the invasion and occupation, the acts of its armed forces were in any way attributable to the United Nations. 79. In Resolution 1511, adopted on 16 October 2003, the United Nations Security Council, again acting under Chapter VII of the Charter, underscored the temporary nature of the exercise by the CPA of the authorities and responsibilities set out in Resolution 1483, which would cease as soon as an internationally recognised, representative Iraqi government could be sworn in. In paragraphs 13 and 14, the Security Council authorised “a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq” and urged member States “to contribute assistance under this United Nations mandate, including military forces, to the Multinational Force referred to in paragraph 13” (see paragraph 31 above). The United States of America, on behalf of the Multinational Force, was requested periodically to report on the efforts and progress of the Force. The Security Council also resolved that the United Nations, acting through the Secretary-General, his Special Representative, and the United Nations Assistance Mission for Iraq, should strengthen its role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government. 80. The Court does not consider that, as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the Multinational Force became attributable to the United Nations or – more importantly, for the purposes of this case – ceased to be attributable to the troop-contributing nations. The Multinational Force had been present in Iraq since the invasion and had been recognised already in Resolution 1483, which welcomed the willingness of member States to contribute personnel. The unified command structure over the Force, established from the start of the invasion by the United States of America and the United Kingdom, was not changed as a result of Resolution 1511. Moreover, the United States of America and the United Kingdom, through the CPA which they had established at the start of the occupation, continued to exercise the powers of government in Iraq. Although the United States of America was requested to report periodically to the Security Council about the activities of the Multinational Force, the United Nations did not, thereby, assume any degree of control over either the Force or any other of the executive functions of the CPA. 81. The final resolution of relevance to the present issue was Resolution 1546 (see paragraph 35 above). It was adopted on 8 June 2004, twenty days before the transfer of power from the CPA to the Iraqi interim government and some four months before the applicant was taken into detention. Annexed to the Resolution was a letter from the Prime Minister of the interim government of Iraq, seeking from the Security Council a new resolution on the Multinational Force mandate. There was also annexed a letter from the US Secretary of State to the President of the United Nations Security Council, confirming that “the Multinational Force [under unified command] [wa]s prepared to continue to contribute to the maintenance of security in Iraq” and informing the President of the Security Council of the goals of the Multinational Force and the steps which its Commander intended to take to achieve those goals. It does not appear from the terms of this letter that the US Secretary of State considered that the United Nations controlled the deployment or conduct of the Multinational Force. In Resolution 1546 the Security Council, acting under Chapter VII of the Charter of the United Nations, reaffirmed the authorisation for the Multinational Force established under Resolution 1511. There is no indication in Resolution 1546 that the Security Council intended to assume any greater degree of control or command over the Multinational Force than it had exercised previously. 82. In Resolution 1546 the Security Council also decided that, in implementing their mandates in Iraq, the Special Representative of the Secretary-General and the United Nations Assistance Mission for Iraq (UNAMI) should play leading roles in assisting in the establishment of democratic institutions, economic development and humanitarian assistance. The Court notes that the Secretary-General and UNAMI, both clearly organs of the United Nations, in their quarterly and bi-monthly reports to the Security Council for the period during which the applicant was detained, repeatedly protested about the extent to which security internment was being used by the Multinational Force (see paragraphs 40 and 41 above). It is difficult to conceive that the applicant’s detention was attributable to the United Nations and not to the United Kingdom when United Nations organs, operating under the mandate of Resolution 1546, did not appear to approve of the practice of indefinite internment without trial and, in the case of UNAMI, entered into correspondence with the United States embassy in an attempt to persuade the Multinational Force under American command to modify the internment procedure. 83. In the light of the foregoing, the Court agrees with the majority of the House of Lords that the United Nations’ role as regards security in Iraq in 2004 was quite different from its role as regards security in Kosovo in 1999. The comparison is relevant, since in its decision in Behrami and Saramati (cited above) the Court concluded, inter alia, that Mr Saramati’s detention was attributable to the United Nations and not to any of the respondent States. It is to be recalled that the international security presence in Kosovo was established by United Nations Security Council Resolution 1244, adopted on 10 June 1999, in which, “determined to resolve the grave humanitarian situation in Kosovo”, the Security Council “decide[d] on the deployment in Kosovo, under United Nations auspices, of international civil and security presences”. The Security Council therefore authorised “member States and relevant international organisations to establish the international security presence in Kosovo” and directed that there should be “substantial North Atlantic Treaty Organization participation” in the Force, which “must be deployed under unified command and control”. In addition, Resolution 1244 authorised the Secretary-General of the United Nations to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo. The United Nations, through a Special Representative appointed by the Secretary-General in consultation with the Security Council, was to control the implementation of the international civil presence and coordinate closely with the international security presence (see Behrami and Saramati, cited above, §§ 3, 4 and 41). On 12 June 1999, two days after the Resolution was adopted, the first elements of the NATO-led Kosovo Force (KFOR) entered Kosovo. 84. It would appear from the opinion of Lord Bingham in the first set of proceedings brought by the applicant that it was common ground between the parties before the House of Lords that the test to be applied in order to establish attribution was that set out by the International Law Commission in Article 5 of its Draft Articles on the Responsibility of International Organisations and in its commentary thereon, namely that the conduct of an organ of a State placed at the disposal of an international organisation should be attributable under international law to that organisation if the organisation exercises effective control over that conduct (see paragraphs 18 and 56 above). For the reasons set out above, the Court considers that the United Nations Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multinational Force and that the applicant’s detention was not, therefore, attributable to the United Nations. 85. The internment took place within a detention facility in Basra City, controlled exclusively by British forces, and the applicant was therefore within the authority and control of the United Kingdom throughout (see paragraph 10 above; see also Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 136, ECHR 2011, and Al-Saadoon and Mufdhi v. the United Kingdom (dec.), no. 61498/08, § 88, 30 June 2009; see also the judgment of the United States Supreme Court in Munaf v. Geren, paragraph 54 above). The decision to hold the applicant in internment was made by the British officer in command of the detention facility. Although the decision to continue holding the applicant in internment was, at various points, reviewed by committees including Iraqi officials and non-United Kingdom representatives from the Multinational Force, the Court does not consider that the existence of these reviews operated to prevent the detention from being attributable to the United Kingdom. 86. In conclusion, the Court agrees with the majority of the House of Lords that the internment of the applicant was attributable to the United Kingdom and that during his internment the applicant fell within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention. 2. Alleged breach of Article 5 § 1 of the Convention (a) The parties’ submissions (i) The Government 87. The Government contended that the United Kingdom was under an obligation to detain the applicant, pursuant to United Nations Security Council Resolution 1546. They emphasised that between 22 May 2003 and 28 June 2004, British forces operated in Iraq under a legal regime derived from the law of belligerent occupation, as modified by the United Nations Security Council in Resolutions 1483 and 1511 (see paragraphs 29 and 31 above). Thus, the Preamble to Resolution 1483 in terms recognised the “specific authorities, responsibilities and obligations” of the Occupying Powers, including those under the Geneva Conventions of 1949. In the Government’s submission, customary international law, as reflected in Article 43 of the Hague Regulations (see paragraph 42 above), required the Occupying Power to “take all the measures in his power to restore, and ensure, as far as possible, public order and safety” in the occupied territory. In its judgment in Democratic Republic of the Congo (DRC) v. Uganda, the International Court of Justice described this as including a duty “to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party” (see paragraph 50 above). In addition, Article 27 of the Fourth Geneva Convention placed a responsibility on the Occupying Power to take steps to protect the civilian population “against all acts of violence or threats thereof” and Article 64 referred to a general obligation to ensure the “orderly government” of the occupied territory (see paragraph 43 above). The Occupying Power could also protect its forces and administration from acts of violence. It had broad powers of compulsion and restraint over the population of the occupied territory. Article 78 of the Fourth Geneva Convention recognised the power to detain where “the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons”. In the Government’s submission, the “specific authorities, responsibilities and obligations” of an Occupying Power, as recognised in United Nations Security Council Resolution 1483, included the power to detain persons in an occupied territory on security grounds. This power was derived from the duty of governance imposed upon an Occupying Power by customary international law. It was also derived from the domestic law of the occupied territory as modified by the Occupying Power (as, for example, in CPA Memorandum No. 3 (Revised): see paragraph 36 above). 88. The Government further submitted that United Nations Security Council Resolution 1546, like Resolution 1511, recognised in its Preamble that international support for the restoration of security and stability was “essential” to the well-being of the people of Iraq. Resolution 1546 reaffirmed the mandate of the Multinational Force, having regard to the request from the Prime Minister of the Iraqi interim government for the Multinational Force to remain in Iraq after the end of the occupation (see paragraph 35 above). Paragraph 10 of Resolution 1546 specifically provided the Multinational Force with “authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this Resolution”. It was clear from the text of Resolution 1546 that the annexed letters were integral to it and defined the scope of the powers conferred by the Security Council. The letter from US Secretary of State Colin Powell expressly referred to internment as one of the tasks which the Multinational Force was to continue to perform. In the Government’s view, therefore, Resolution 1546 could not have been clearer in terms of authorising the Multinational Force to use preventive detention where “necessary for imperative reasons of security in Iraq”. It was also clear from Resolution 1546 and the letters annexed thereto that what was authorised by the Security Council was a regime of detention modelled on the “specific authorities, responsibilities and obligations” that had existed during the period of occupation. This was also the view taken by Lord Bingham in the House of Lords when he considered the Resolution (see paragraph 20 above). By participating in the Multinational Force and thus taking up the authorisation conferred by the Security Council, the United Kingdom agreed to assist in the achievement of the specific objectives to maintain security and stability in Iraq set out in Resolution 1546. As Lord Bingham put it, the United Kingdom was “bound to exercise its power of detention where this was necessary for imperative reasons of security”. The facts of the applicant’s case, and in particular the findings of the Special Immigration Appeals Commission with regard to the applicant’s involvement in attacks against Coalition Forces (see paragraph 15 above), demonstrated the importance of such an obligation. 89. The Government pointed out that Article 25 of the Charter of the United Nations created an obligation for United Nations member States to “accept and carry out the decisions of the Security Council”. The effect of Article 103 of the Charter was that the obligation under Article 25 had to prevail over obligations under other international treaties (see paragraph 46 above). This was confirmed by the decision of the International Court of Justice in the Lockerbie case (see paragraph 48 above). As Lord Bingham pointed out, it was also confirmed by leading commentators such as Judges Simma, Bernhardt and Higgins (see paragraph 35 of the House of Lords judgment, at paragraph 20 above). As a matter of principle, the primacy accorded by Article 103 of the Charter was unsurprising: one of the core objectives of the United Nations was to maintain and restore international peace and security and Article 103 was central to the Security Council’s ability to give practical effect to the measures it had decided upon. 90. In the Government’s submission, the effect of Article 103 was not confined to the decisions of the Security Council obliging States to act in a certain way. It also applied to the decisions of the Security Council authorising action. The practice of the Security Council, at least since the early 1990s, had been to seek to achieve its aims, and to discharge its responsibility, in respect of the maintenance of international peace and security by authorising military action by States and organisations such as NATO. As the Court had mentioned in its decision in Behrami and Saramati (cited above, § 132), no agreements had ever been made under Article 43 of the Charter of the United Nations by member States undertaking to make troops available to the United Nations. In the absence of any such agreement, no State could be required to take military action. Unless the Security Council could proceed by authorisation, it would be unable to take military measures at all, thus frustrating an important part of the Chapter VII machinery. However, if a resolution authorising military action did not engage Article 103 of the Charter, the result would be that any State acting under that authorisation would breach any conflicting treaty obligations, which would fatally undermine the whole system of the Charter for the protection of international peace and security. It was plain that this was not the way that States had regarded the legal position under any of the numerous resolutions issued by the Security Council authorising military action. It had also been the view of the most authoritative commentators; as Lord Bingham observed at paragraph 33 of the House of Lords judgment, there is “a strong and to my mind persuasive body of academic opinion which would treat Article 103 as applicable where conduct is authorised by the Security Council as where it is required”. 91. In consequence, it was the Government’s case that the application of Article 5 of the Convention was displaced by the legal regime established by United Nations Security Council Resolution 1546 by reason of the operation of Articles 25 and 103 of the Charter of the United Nations, to the extent that Article 5 was not compatible with that legal regime. The Convention was a part of international law and derived its normative force from international law. It was concluded only five years after the Charter of the United Nations and if there had been any intention to seek to disapply Article 103 to the provisions of the Convention, this would have been clearly stated. Moreover, the Court had never suggested in its case-law that it considered that Article 103 did not apply to displace obligations under the Convention which were incompatible with an obligation under a United Nations Security Council resolution. On the contrary, in Behrami and Saramati (cited above, §§ 147 and 149), the Grand Chamber explicitly recognised that the Convention should not be applied in such a way as to undermine or conflict with actions taken under Chapter VII by the Security Council. 92. The Government contended that the applicant’s reliance on the judgment of the European Court of Justice in Kadi (see paragraph 53 above) was misplaced, since the European Court of Justice did not decide that case on the point of principle currently before this Court. Nor was the Court’s judgment in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005 ‑ VI) (hereinafter “ Bosphorus ”) of assistance to the applicant, since in that case the Court was able to come to the conclusion that there had been no violation of the Convention without having to address any distinct argument based on Article 103 of the Charter of the United Nations. The Government also rejected the applicant’s argument that the Convention recognised a limit to the protection of human rights, applicable in this case, by way of the power of derogation under Article 15 in time of national emergencies. The proposition that it would have been possible for the United Kingdom to derogate under Article 15 in respect of an international conflict was not supported by Banković and Others, cited above, § 62). (ii) The applicant 93. The applicant submitted that United Nations Security Council Resolution 1546 did not require the United Kingdom to hold him in internment in breach of Article 5 of the Convention. In Resolution 1546 the Security Council conferred on the United Kingdom a power, but not an obligation, to intern. As the International Court of Justice stated in the Namibia case, “the language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect” (see paragraph 49 above). Where appropriate, the Security Council could require States to take specific action. It did so in the resolutions under consideration in the Kadi and Bosphorus cases (cited above), where States were required, “with no autonomous discretion”, respectively to freeze the assets of designated persons or to impound aircraft operating from the Federal Republic of Yugoslavia. In contrast, the language of Resolution 1546 and the letters annexed thereto made it clear that the Security Council was asked to provide, and did provide, an authorisation to the Multinational Force to take the measures that it considered necessary to contribute to the maintenance of security and stability in Iraq. It did not require a State to take action incompatible with its human rights obligations, but instead left a discretion to the State as to whether, when and how to contribute to the maintenance of security. Respect for human rights was one of the paramount principles of the Charter of the United Nations and if the Security Council had intended to impose an obligation on British forces to act in breach of the United Kingdom’s international human rights obligations, it would have used clear and unequivocal language. It followed that the rule of priority under Article 103 of the Charter of the United Nations did not come into effect. 94. The applicant argued that the rationale of the European Court of Justice and the Advocate General in Kadi (see paragraph 53 above) applied equally to the Convention. In Kadi, the European Court of Justice held that European Community measures adopted to give effect to United Nations Security Council resolutions were subject to review on grounds of compatibility with human rights as protected by Community law. This review concerned the internal lawfulness of such measures under Community law and not the lawfulness of the United Nations Security Council resolutions to which they were intended to give effect. The same principles applied in the present case since, in the applicant’s submission, member States acting under United Nations Security Council Resolution 1546 had a “free choice” as to the “procedure applicable”, which meant that the procedure had to be lawful. The essence of the judgment in Kadi was that obligations arising from United Nations Security Council resolutions do not displace the requirements of human rights as guaranteed in Community law. It was true that the European Court of Justice examined the validity of a Community regulation and did not examine directly any member State action implementing United Nations Security Council resolutions. But this was a technical point, resulting from the fact that the challenge was brought against a Community measure and not a national one; it did not affect the substance or scope of the European Court of Justice’s ruling. 95. In the applicant’s view, the Government’s argument would result in a principle under which United Nations Security Council resolutions, whatever their content, could entirely displace any and all Convention rights and obligations. It would introduce a general, blanket derogation from all Convention rights. Article 15 permitted a State to derogate from certain Convention rights, including Article 5, but only in times of war or public emergency and under strict conditions, subject to the Court’s review. Moreover, it would be clearly incompatible with the principle of effectiveness to exclude a priori the application of the Convention in relation to all action undertaken by a Contracting Party pursuant to a United Nations Security Council resolution. If it were accepted that international law obligations displaced substantive provisions of the Convention, the scope of application of the Convention would be substantially reduced and protection would be denied in some cases where it was most needed. Such a position would be contrary to the principle expressed by the Court in its judgment in Bosphorus (cited above). (iii) The third-party interveners 96. The non-governmental organisations Liberty and JUSTICE, third-party interveners, pointed out that the Court’s case-law, particularly the judgment in Bosphorus (cited above), supported the view that international law obligations were not, prima facie, able to displace substantive obligations under the Convention, although they might be relevant when considering specific components of Convention rights. One way in which the Court had considered them relevant was encapsulated in the presumption of “equivalent protection” provided by a framework for the protection of fundamental rights within an international organisation of which the Contracting State is a member. (b) The Court’s assessment 97. Article 5 § 1 of the Convention provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” 98. The applicant was detained in a British military facility for over three years, between 10 October 2004 and 30 December 2007. His continuing internment was authorised and reviewed, initially by British senior military personnel and subsequently also by representatives of the Iraqi and United Kingdom governments and by non-British military personnel, on the basis of intelligence material which was never disclosed to him. He was able to make written submissions to the reviewing authorities but there was no provision for an oral hearing. The internment was authorised “for imperative reasons of security”. At no point during the internment was it intended to bring criminal charges against the applicant (see paragraphs 11-13 above). 99. The Court emphasises at the outset that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. The text of Article 5 makes it clear that the guarantees it contains apply to “everyone”. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty. No deprivation of liberty will be compatible with Article 5 § 1 unless it falls within one of those grounds or unless it is provided for by a lawful derogation under Article 15 of the Convention, which allows for a State “in time of war or other public emergency threatening the life of the nation” to take measures derogating from its obligations under Article 5 “to the extent strictly required by the exigencies of the situation” (see, inter alia, Ireland v. the United Kingdom, 18 January 1978, § 194, Series A no. 25, and A. and Others v. the United Kingdom, cited above, §§ 162 and 163). 100. It has long been established that the list of grounds of permissible detention in Article 5 § 1 does not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time (see Lawless v. Ireland ( no. 3), 1 July 1961, §§ 13 and 14, Series A no. 3; Ireland v. the United Kingdom, cited above, § 196; Guzzardi v. Italy, 6 November 1980, § 102, Series A no. 39; and Jėčius v. Lithuania, no. 34578/97, §§ 47-52, ECHR 2000-IX). The Government do not contend that the detention was justified under any of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1, nor did they purport to derogate under Article 15. Instead, they argue that there was no violation of Article 5 § 1 because the United Kingdom’s duties under that provision were displaced by the obligations created by United Nations Security Council Resolution 1546. They contend that, as a result of the operation of Article 103 of the Charter of the United Nations (see paragraph 46 above), the obligations under the United Nations Security Council resolution prevailed over those under the Convention. 101. Article 103 of the Charter of the United Nations provides that the obligations of the members of the United Nations under the Charter shall prevail in the event of a conflict with obligations under any other international agreement. Before it can consider whether Article 103 had any application in the present case, the Court must determine whether there was a conflict between the United Kingdom’s obligations under United Nations Security Council Resolution 1546 and its obligations under Article 5 § 1 of the Convention. In other words, the key question is whether Resolution 1546 placed the United Kingdom under an obligation to hold the applicant in internment. 102. In its approach to the interpretation of Resolution 1546, the Court has reference to the considerations set out in paragraph 76 above. In addition, the Court must have regard to the purposes for which the United Nations was created. As well as the purpose of maintaining international peace and security, set out in the first sub-paragraph of Article 1 of the Charter of the United Nations, the third sub-paragraph provides that the United Nations was established to “achieve international cooperation in ... promoting and encouraging respect for human rights and for fundamental freedoms”. Article 24 § 2 of the Charter requires the Security Council, in discharging its duties with respect to its primary responsibility for the maintenance of international peace and security, to “act in accordance with the Purposes and Principles of the United Nations”. Against this background, the Court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law. 103. In this respect, the Court notes that Resolution 1546 was preceded by letters to the President of the Security Council from the Prime Minister of the interim government of Iraq and the US Secretary of State (see paragraph 34 above). In his letter, the Iraqi Prime Minister looked forward to the passing back of full sovereignty to the Iraqi authorities. He requested the Security Council, however, to make a new resolution authorising the Multinational Force to remain on Iraqi territory and to contribute to maintaining security there, “including through the tasks and arrangements” set out in the accompanying letter from the US Secretary of State. In his letter, the US Secretary of State recognised the request of the government of Iraq for the continued presence of the Multinational Force in Iraq and confirmed that the Multinational Force under unified command was prepared to continue to contribute to the maintenance of security in Iraq, including by preventing and deterring terrorism. He added that, under the agreed arrangement, the Multinational Force stood: “ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure Force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. ...”. 104. These letters were annexed to United Nations Security Council Resolution 1546 (see paragraph 35 above). The Preamble to the Resolution looked forward to the end of the occupation and the assumption of full responsibility and authority by a fully sovereign Iraqi government; recognised the request of the Iraqi Prime Minister in the annexed letter to retain the presence of the Multinational Force; welcomed the willingness of the Multinational Force to continue efforts to contribute to the maintenance of security and stability in Iraq and also noted “the commitment of all forces ... to act in accordance with international law, including obligations under international humanitarian law”. In paragraph 9 of the Resolution, the Security Council noted that the Multinational Force remained in Iraq at the request of the incoming government and reaffirmed the authorisation for the Multinational Force first established under Resolution 1511, “having regard to the letters annexed to this Resolution”. In paragraph 10 it decided that the Multinational Force: “shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this Resolution expressing, inter alia, the Iraqi request for the continued presence of the Multinational Force and setting out its tasks, including by preventing and deterring terrorism ...” 105. The Court does not consider that the language used in this Resolution indicates unambiguously that the Security Council intended to place member States within the Multinational Force under an obligation to use measures of indefinite internment without charge and without judicial guarantees, in breach of their undertakings under international human rights instruments including the Convention. Internment is not explicitly referred to in the Resolution. In paragraph 10, the Security Council decides that the Multinational Force shall have authority “to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed”, which, inter alia, set out the Multinational Force’s tasks. Internment is listed in US Secretary of State Powell’s letter, as an example of the “broad range of tasks” which the Multinational Force stood ready to undertake. In the Court’s view, the terminology of the Resolution appears to leave the choice of the means to achieve this end to the member States within the Multinational Force. Moreover, in the Preamble, the commitment of all forces to act in accordance with international law is noted. It is clear that the Convention forms part of international law, as the Court has frequently observed (see, for example, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 ‑ XI). In the absence of clear provision to the contrary, the presumption must be that the Security Council intended States within the Multinational Force to contribute towards the maintenance of security in Iraq while complying with their obligations under international human rights law. 106. Furthermore, it is difficult to reconcile the argument that Resolution 1546 placed an obligation on member States to use internment with the objections repeatedly made by the United Nations Secretary-General and the United Nations Assistance Mission for Iraq (UNAMI) to the use of internment by the Multinational Force. Under paragraph 7 of Resolution 1546 both the Secretary-General, through his Special Representative, and UNAMI were specifically mandated by the Security Council to “promote the protection of human rights ... in Iraq”. In his quarterly reports throughout the period of the applicant’s internment, the Secretary-General repeatedly described the extent to which security internment was being used by the Multinational Force as a pressing human rights concern. UNAMI reported on the human rights situation every few months during the same period. It also repeatedly expressed concern at the large numbers being held in indefinite internment without judicial oversight (see paragraphs 40-41 above). 107. The Court has considered whether, in the absence of express provision in Resolution 1546, there was any other legal basis for the applicant’s detention which could operate to disapply the requirements of Article 5 § 1 of the Convention. The Government have argued that the effect of the authorisations in paragraphs 9 and 10 of Resolution 1546 was that the Multinational Force continued to exercise the “specific authorities, responsibilities and obligations” that had vested in the United States of America and the United Kingdom as Occupying Powers under international humanitarian law and that these “obligations” included the obligation to use internment where necessary to protect the inhabitants of the occupied territory against acts of violence. Some support for this submission can be derived from the findings of the domestic courts (see, for example, Lord Bingham at paragraph 32 of the House of Lords judgment; see paragraph 20 above). The Court notes in this respect that paragraph 2 of Resolution 1546 clearly stated that the occupation was to end by 30 June 2004. However, even assuming that the effect of Resolution 1546 was to maintain, after the transfer of authority from the CPA to the interim government of Iraq, the position under international humanitarian law which had previously applied, the Court does not find it established that international humanitarian law places an obligation on an Occupying Power to use indefinite internment without trial. Article 43 of the Hague Regulations requires an Occupying Power to take “all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country” (see paragraph 42 above). While the International Court of Justice in its judgment Armed Activities on the Territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda) interpreted this obligation to include the duty to protect the inhabitants of the occupied territory from violence, including violence by third parties, it did not rule that this placed an obligation on the Occupying Power to use internment; indeed, it also found that Uganda, as an Occupying Power, was under a duty to secure respect for the applicable rules of international human rights law, including the provisions of the International Covenant for the Protection of Civil and Political Rights, to which it was a signatory (see paragraph 50 above). In the Court’s view, it would appear from the provisions of the Fourth Geneva Convention that under international humanitarian law internment is to be viewed not as an obligation on the Occupying Power but as a measure of last resort (see paragraph 43 above). 108. A further legal basis might be provided by the agreement, set out in the letters annexed to Resolution 1546, between the Iraqi government and the United States government, on behalf of the other States contributing troops to the Multinational Force, including the United Kingdom, that the Multinational Force would continue to carry out internment in Iraq where the Multinational Force considered this necessary for imperative reasons of security (see paragraph 34 above). However, such an agreement could not override the binding obligations under the Convention. In this respect, the Court recalls its case-law to the effect that a Contracting State is considered to retain Convention liability in respect of treaty commitments and other agreements between States subsequent to the entry into force of the Convention (see, for example, Al-Saadoon and Mufdhi, cited above, §§ 126 ‑ 28). 109. In conclusion, therefore, the Court considers that United Nations Security Council Resolution 1546, in paragraph 10, authorised the United Kingdom to take measures to contribute to the maintenance of security and stability in Iraq. However, neither Resolution 1546 nor any other United Nations Security Council resolution explicitly or implicitly required the United Kingdom to place an individual whom its authorities considered to constitute a risk to the security of Iraq in indefinite detention without charge. In these circumstances, in the absence of a binding obligation to use internment, there was no conflict between the United Kingdom’s obligations under the Charter of the United Nations and its obligations under Article 5 § 1 of the Convention. 110. In these circumstances, where the provisions of Article 5 § 1 were not displaced and none of the grounds for detention set out in sub-paragraphs (a) to (f) applied, the Court finds that the applicant’s detention constituted a violation of Article 5 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 111. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 112. The applicant submitted that his unlawful detention, for a period of three years, two months and 20 days, merited non-pecuniary damage in the region of 115,000 euros (EUR). He relied on awards made by the Court in cases such as Jėčius v. Lithuania (no. 34578/97, ECHR 2000 ‑ IX); Tsirlis and Kouloumpas v. Greece (29 May 1997, Reports of Judgments and Decisions 1997 ‑ III); and Assanidze v. Georgia ([GC], no. 71503/01, ECHR 2004 ‑ II) and also domestic case-law concerning the level of damages for unlawful detention. 113. The Government emphasised that the applicant was detained by British troops, operating as part of the Multinational Force in Iraq, because he was reasonably believed to pose a grave threat to the security of Iraq. The detention was authorised throughout under the mandate conferred by United Nations Security Council Resolution 1546 and was also in compliance with Iraqi law. Allegations that the applicant was engaged in terrorist activities in Iraq were subsequently upheld by the Special Immigration Appeals Commission (see paragraph 15 above). In these circumstances, the Government submitted that a finding of a violation would be sufficient just satisfaction. In the alternative, a sum of not more than EUR 3,900 should be awarded. This would be commensurate with the awards made to the applicants in A. and Others v. the United Kingdom ([GC], no. 3455/05, ECHR 2009), which also concerned the preventive detention of individuals suspected of terrorism. 114. The Court recalls that it is not its role under Article 41 to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 224, ECHR 2009, and the cases cited therein). In the present case, the Court has regard to the factors raised by the Government. Nonetheless, it considers that, in view of the very long period of time during which the applicant was detained, monetary compensation should be awarded, in the sum of EUR 25,000. B. Costs and expenses 115. The applicant, emphasising the complexity and importance of the case, claimed for over 450 hours’ legal work by his solicitors and four counsel in respect of the proceedings before the Court, at a total cost of 85,946.32 pounds sterling (GBP). 116. The Government acknowledged that the issues were complex, but nonetheless submitted that the claim was excessive, given that the applicant’s legal advisers were familiar with all aspects of the claim since they had acted for the applicant in the domestic legal proceedings, which had been publicly funded. Furthermore, the hourly rates claimed by the applicant’s counsel, ranging between GBP 500 and GBP 235, and the hourly rates claimed by the applicant’s solicitors, ranging between GBP 180 and GBP 130, were unreasonably high. Nor had it been necessary to engage two Queen’s Counsel and two junior counsel to assist. 117. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 40,000 for the proceedings before the Court. C. Default interest 118. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court found that the applicant’s internment was attributable to the United Kingdom and that, while interned, he fell within the jurisdiction of the United Kingdom for the purposes of Article 1 (obligation to respect human rights) of the Convention. It further found a violation of Article 5 § 1 (right to liberty and security) of the Convention, holding in particular that neither of the relevant UN resolutions explicitly or implicitly required the United Kingdom to place an individual whom its authorities considered to constitute a risk to the security of Iraq into indefinite detention without charge. |
735 | Right to an effective remedy (Article 13 of the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Civil Aviation Act 1982 (“the 1982 Act”) 76. Section 76(1) of the 1982 Act provides, in its relevant part: “No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case, is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order ... have been duly complied with ...” 77. Air Navigation Orders made under the 1982 Act provide for Orders in Council to be made for the regulation of aviation. Orders in Council have been made to deal with, amongst other matters, engine emissions, noise certification and compensation for noise nuisance. 78. Section 78(3) of the 1982 Act provides, in its relevant part: “If the Secretary of State considers it appropriate for the purpose of avoiding, limiting or mitigating the effect of noise and vibration connected with the taking-off or landing of aircraft at a designated aerodrome, to prohibit aircraft from taking off or landing, or limit the number of occasions on which they may take off or land, at the aerodrome during certain periods, he may by a notice published in the prescribed manner do all or any of the following, that is to say – (a) prohibit aircraft of descriptions specified in the notice from taking off or landing at the aerodrome (otherwise than in an emergency of a description so specified) during periods so specified; (b) specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land at the aerodrome ... during the periods so specified; ...” 79. Restrictions on night flights at Heathrow Airport are imposed by means of notices published by the Secretary of State under section 78(3) of the 1982 Act. B. The challenges to the 1993 Scheme 80. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State's decision to introduce the 1993 Scheme. They made four consecutive applications for judicial review, and appealed twice to the Court of Appeal. The High Court declared that the 1993 Scheme was contrary to the terms of section 78(3)(b) of the 1982 Act, and therefore invalid, because it did not “specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land” but, instead, imposed controls by reference to levels of exposure to noise energy (see R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1994] 1 Weekly Law Reports 74). 81. The Secretary of State decided to retain the quota count system, but with the addition of an overall maximum number of aircraft movements. This decision was held by the High Court to be in accordance with section 78(3)(b) of the 1982 Act. However, the 1993 Consultation Paper was held to have been “materially misleading” in failing to make clear that the implementation of the proposals for Heathrow Airport would permit an increase in noise levels over those experienced in 1988 (see R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1995] Environmental Law Reports 390). 82. Following the publication of a further Consultation Paper in March 1995, and of a supplement to the March 1995 Consultation Paper in June 1995, the local authorities brought a further application for judicial review. In July 1996, the Court of Appeal decided that the Secretary of State had given adequate reasons and sufficient justification for his conclusion that it was reasonable, on balance, to run the risk of diminishing to some degree local people's ability to sleep at night because of the other countervailing considerations to which he was, in 1993, willing to give greater weight, and that by June 1995 errors in the consultation papers had been corrected and the new policy could not be said to be irrational (see R. v. Secretary of State for Transport, ex parte Richmond LBC [1996] 1 Weekly Law Reports 1460). 83. On 12 November 1996 the House of Lords dismissed a petition by the local authorities for leave to appeal against the decision of the Court of Appeal. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 84. The applicants complained that the government policy on night flights at Heathrow introduced in 1993 violated their rights under Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Government denied that there had been any violation of the Convention in this case. A. The general principles 1. The Chamber's judgment 85. In its judgment of 2 October 2001, the Chamber held that because Heathrow Airport and the aircraft which used it were not owned, controlled or operated by the government or its agents, the United Kingdom could not be said to have “interfered” with the applicants' private or family lives. Instead, the Chamber analysed the applicants' complaints in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under Article 8 § 1 (see paragraph 95 of the Chamber's judgment). 86. The Chamber further held that, whatever analytical approach was adopted, regard must be had to the fair balance that had to be struck between the competing interests of the individual and the community as a whole. In both contexts, the State enjoyed a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see paragraph 96 of the Chamber's judgment). However, the Chamber underlined that in striking the required balance States must have regard to the whole range of material considerations. Further, in the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country was not sufficient to outweigh the rights of others. The Chamber considered that States were required to minimise, as far as possible, interference with Article 8 rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights. In order to do that, a proper and complete investigation and study, with the aim of finding the best possible solution which would, in reality, strike the right balance, should precede the relevant project (see paragraph 97 of the Chamber's judgment). 2. The parties' submissions (a) The Government 87. In their letter requesting that the case be referred to the Grand Chamber, and in their written and oral observations to the Grand Chamber, the Government strongly objected to the “minimum interference” approach outlined by the Chamber in paragraph 97 of its judgment. The Government argued that this test in the context of the present type of case was at odds with a consistent line of Convention jurisprudence and was unwarranted in principle. They submitted that the test reduced to vanishing-point the margin of appreciation afforded to States in an area involving difficult and complex balancing of a variety of competing interests and factors. 88. Not merely was there clear authority in favour of a wide margin, it was appropriate and right in principle that the State should be allowed such a margin in a context such as the present, since it involved the balancing of a number of competing rights and interests, the importance and sensitivity of some of which might be difficult accurately to evaluate. There was no single correct policy to be applied as regards the regulation of night flights; States could and did adopt a variety of different approaches. The Government reasoned that the present context was similar to the field of planning policy, where the Court had consistently recognised that by reason of their direct and continuous contact with the vital forces of their countries and because of the range of discretionary issues involved, the national authorities were in principle better placed than an international court to evaluate local conditions and needs. 89. They accepted that inherent in the striking of a fair balance was a need to be sufficiently informed in relation to the relevant issues, in order to avoid making or appearing to make an arbitrary decision. However, the decision-making process was primarily for the national authorities, in this case, the government, subject to judicial review by the domestic courts. The European Court's powers in this context were supervisory: in the absence of any indication of an arbitrary or clearly inadequate investigation, a detailed and minute critique of the information which the government should take into account was neither necessary nor appropriate. (b) The applicants 90. The applicants argued that it was well established from previous case-law that aircraft noise was capable of infringing the Article 8 rights of those sufficiently affected by it and that national authorities owed a positive duty to take steps to ensure the effective protection of these rights. Relying on earlier environmental cases and also child-care and other cases under Article 8, they submitted that the duty could be breached in circumstances where, having regard to the margin of appreciation, the Court considered that the State had struck the wrong substantive balance between the interest it pursued and the individual's effective enjoyment of the Article 8 right, or where there had been a procedural failing, such as the failure to disclose information to an individual affected by environmental nuisance or a failure to base a decision-making process on the relevant considerations or to give relevant and sufficient reasons for an interference with a fundamental right. 91. The applicants accepted that any informed assessment of whether an interference with Article 8 rights was “necessary in a democratic society” would be accorded a margin of appreciation, the width of that margin depending on the context. However, they submitted that in the present case the margin should be narrow, because deprivation of sleep by exposure to excessive noise, like the infliction of inhuman or degrading treatment, was a matter which could and should be judged by similar standards in similar Contracting States. 92. Moreover, where a case – such as the present – could be decided on the basis of a procedural breach, namely the government's failure properly to assemble the evidence necessary for the decision-making process, the doctrine of the margin of appreciation had no role to play, since the international judge was well placed to assess the adequacy of the procedural safeguards applied by the State. 93. For the applicants, the approach of the Chamber – that the violation of Article 8 was based on the government's failure to assemble the evidence that would have been necessary for the decision to be made on the basis of the relevant considerations – was but one way of dealing with the case. A violation of Article 8 could also be established on the basis that the necessary steps to ensure protection of Article 8 rights were not taken, that “relevant and sufficient reasons” had not been given for the interference, or that the substantive balance of interests had not been properly struck. 3. The third parties 94. Friends of the Earth submitted that the Chamber's judgment in the present case was consistent with developments in national and international law concerning the relationship between human rights and the environment. In particular, it was consistent with requirements under general international law requiring decision-makers to satisfy themselves by means of proper, complete, and prior investigation as to the factors which should be taken into account in order to achieve an appropriate balance between individual rights and the State's economic interests. 95. British Airways did not comment on the general principles to be applied by the Court. 4. The Court's assessment 96. Article 8 protects the individual's right to respect for his or her private and family life, home and correspondence. There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8. Thus, in Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172, p. 18, § 40), where the applicants had complained about disturbance from daytime aircraft noise, the Court held that Article 8 was relevant, since “the quality of [each] applicant's private life and the scope for enjoying the amenities of his home [had] been adversely affected by the noise generated by aircraft using Heathrow Airport”. Similarly, in López Ostra v. Spain (judgment of 9 December 1994, Series A no. 303-C, pp. 54-55, § 51) the Court held that Article 8 could include a right to protection from severe environmental pollution, since such a problem might “affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. In Guerra and Others v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I), which, like López Ostra, concerned environmental pollution, the Court observed that “[the] direct effect of the toxic emissions on the applicants' right to respect for their private and family life means that Article 8 is applicable” (p. 227, § 57). 97. At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, for example, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46, where the Court found it natural that the margin of appreciation “available to the legislature in implementing social and economic policies should be a wide one”). 98. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private industry properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Powell and Rayner, p. 18, § 41, and López Ostra pp. 54-55, § 51, both cited above). 99. The Court considers that in a case such as the present one, involving State decisions affecting environmental issues, there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess the substantive merits of the government's decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual. 100. In relation to the substantive aspect, the Court has held that the State must be allowed a wide margin of appreciation. In Powell and Rayner, for example, it asserted that it was “certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere”, namely the regulation of excessive aircraft noise and the means of redress to be provided to the individual within the domestic legal system. The Court continued that “this is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation” (p. 19, § 44). 101. In other cases involving environmental issues, for example planning cases, the Court has also held that the State must be allowed a wide margin of appreciation. The Court explained the reasons for this approach in Buckley v. the United Kingdom, where the applicant complained that she had been denied planning permission to install a residential caravan on land that she owned (judgment of 25 September 1996, Reports 1996-IV, pp. 1291-93, §§ 74-77): “74. As is well established in the Court's case-law, it is for the national authorities to make the initial assessment of the 'necessity' for an interference, as regards both the legislative framework and the particular measure of implementation ... Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention. The scope of this margin of appreciation is not identical in each case but will vary according to the context ... Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned. 75. The Court has already had occasion to note that town and country planning schemes involve the exercise of discretionary judgment in the implementation of policies adopted in the interest of the community ... It is not for the Court to substitute its own view of what would be the best policy in the planning sphere or the most appropriate individual measure in planning cases ... By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation. 76. The Court cannot ignore, however, that in the instant case the interests of the community are to be balanced against the applicant's right to respect for her 'home', a right which is pertinent to her and her children's personal security and well-being ... The importance of that right for the applicant and her family must also be taken into account in determining the scope of the margin of appreciation allowed to the respondent State. Whenever discretion capable of interfering with the enjoyment of a Convention right such as the one in issue in the present case is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case-law that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 ... 77. The Court's task is to determine, on the basis of the above principles, whether the reasons relied on to justify the interference in question are relevant and sufficient under Article 8 § 2.” 102. The Court has recognised that, where government policy in the form of criminal laws interferes with a particularly intimate aspect of an individual's private life, the margin of appreciation left to the State will be reduced in scope (see Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, p. 21, § 52). 103. The Court is thus faced with conflicting views as to the margin of appreciation to be applied: on the one hand, the Government claim a wide margin on the ground that the case concerns matters of general policy, and, on the other hand, the applicants' claim that where the ability to sleep is affected, the margin is narrow because of the “intimate” nature of the right protected. This conflict of views on the margin of appreciation can be resolved only by reference to the context of a particular case. 104. In connection with the procedural element of the Court's review of cases involving environmental issues, the Court is required to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals (including the applicants) were taken into account throughout the decision-making procedure, and the procedural safeguards available. B. Appraisal of the facts of the case in the light of the general principles 1. The Chamber's judgment 105. The Chamber found that, overall, the level of noise during the hours 11.30 p.m. to 6 a.m. had increased under the 1993 Scheme. It considered that, in permitting increased levels of noise from 1993 onwards, the government had failed to respect their positive obligation to the applicants, through omitting, either directly or through the commissioning of independent research, to assess critically the importance of the contribution of night flights to the United Kingdom economy. The Chamber further criticised the government for carrying out only limited research into the effects of night flights on local residents prior to the introduction of the 1993 Scheme, noting that the 1992 sleep study was limited to sleep disturbance and made no mention of the problem of sleep prevention. The Chamber did not accept that the “modest” steps taken to mitigate night noise under the 1993 Scheme were capable of constituting “the measures necessary” to protect the applicants. It concluded that “in the absence of any serious attempt to evaluate the extent or impact of the interferences with the applicants' sleep patterns, and generally in the absence of a prior specific and complete study with the aim of finding the least onerous solution as regards human rights, it is not possible to agree that in weighing the interferences against the economic interest of the country – which itself had not been quantified – the government struck the right balance in setting up the 1993 Scheme”. 2. The parties' submissions (a) The Government 106. The Government recognised that night-time noise from aircraft had the capacity to disturb or prevent sleep, but urged the Court to assess critically the applicants' claims that each suffered from a high level of disturbance. In this connection they pointed out that there was a considerable variety in the geographical positions of the applicants and in the levels of night noise to which they were exposed. Furthermore, it was noteworthy that hundreds of thousands of residents of London and the home counties were in a similar position, that the property market in the affected areas was thriving and that the applicants had not claimed that they were unable to sell their houses and move. 107. The Government stressed that all other principal European hub airports had less severe restrictions on night flights than those imposed at the three London airports. Paris-Charles de Gaulle and Amsterdam-Schiphol had no restrictions at all on the total number of “Chapter 3” aircraft which could operate at night, while Frankfurt had restrictions on landings by Chapter 3 aircraft between 1 a.m. and 4 a.m. If restrictions on night flights at Heathrow were made more stringent, UK airlines would be placed at a significant competitive disadvantage. Since 1988 they had used the scarce night slots permitted at Heathrow for two purposes: a small number were late evening departures on flights which had been delayed but the majority, typically thirteen to sixteen flights a night, were early morning arrivals between 4 a.m. and 6 a.m. of long-haul scheduled flights, mainly from South-East Asia, North America and southern Africa. In recent years the airlines concerned had taken steps to ensure that these arrivals did not land before 4.30 a.m. The Government submitted that these flights formed an integral part of the network of connecting air services. If they were forced to operate during the day they could provide fewer viable connections with regional services at both ends, making London a less attractive place in which to do business. In any event, daytime capacity at all of London's airports was close to full, and it would be impracticable to re-schedule flights out of the night period. 108. The Government asserted that before 1993 detailed reviews were conducted into a number of aspects of the night restrictions regime. Thus, in July 1990 the Department of Transport commenced an internal review into the restrictions then applying and, in January, October and November 1993, and also in March and June 1995, published Consultation Papers to seek the views of the public and the industries concerned on the need for and effects of night flights and on various proposed modifications to the regime. The respondents from the airline industry stressed the economic importance of night flights, as set out above. They provided information showing that, in 1993, a typical daily night flight would generate an annual revenue of between GBP 70 and 175 million and an annual profit of up to GBP 15 million. The loss of this revenue and profit would impact severely on the ability of airlines to operate and the cost of air travel by day and night. The Government submitted that the basic components of the economic justification for night flights have never been substantially challenged, either by other respondents to the Consultation Papers or since. Despite accepting the force of the economic justification, the authorities did not go as far as they were invited to by the industry; for example, they did not grant the repeated requests for much larger night noise quotas or a night quota period ending at 5 a.m. Instead, they struck a genuine balance between the interests of the industry and of local residents. 109. The Government stressed that they had also had available, in December 1992, the results of research commissioned in July 1990 into aircraft noise disturbance amongst people living near to Gatwick, Heathrow, Stansted and Manchester Airports (“the 1992 sleep study” – see paragraph 35 above). This study was, and remained, the most comprehensive of its type, and had been preceded by a number of other reports into aircraft noise and sleep disturbance, including detailed interviews with some 1,636 people living near the airports (“the social survey”). The purpose of all this research, culminating in the 1992 sleep study, was to provide information, on as reliable a scientific basis as possible, as to the effects of night-time aircraft noise on sleep. The sleep study showed that external noise levels below 80 dBA were very unlikely to cause any increase in the normal rate of disturbance of someone's sleep; that with external noise levels between 80 and 95 dBA the likelihood of an average person being awakened was about 1 in 75; and that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall disturbance rates, although it was possible that the 2 to 3% of the population who were more sensitive to noise disturbance were twice as likely to be woken. According to the social survey, approximately 80% of those living in the Heathrow area had said that they were never or only sometimes woken up for any cause. Of those that were woken, 17% gave aircraft noise as the cause, 16% blamed a partner or a child and another 28.5% gave a variety of different reasons. Approximately 35% of those living near Heathrow said that if woken, for any reason, they found it difficult to get back to sleep. 110. The Government submitted that the changes to the hours of restriction, the extension of the quota restrictions to place limits on many previously exempt types of aircraft and the restrictions on the scheduling for landing or taking off of the noisiest categories of aircraft over a longer night period made an exact comparison between the regimes before and after 1993 impossible. They recognised that there had been an increase in the number of movements between 6 a.m. and 6.30 a.m. in winter, since this time slot had been subject to restriction before 1993 and now fell outside the quota period. However, the Government contended that, during the core quota period of 11.30 p.m. to 6 a.m., there had been an improvement in the noise environment because of the measures taken, notably the introduction of the quota count system, to encourage the use of quieter aircraft at night. (b) The applicants 111. The applicants, who accepted the Chamber's judgment as one way of applying the Convention to the facts of the case, underlined that only a very small percentage of flights take place between 11.30 p.m. and 6 a.m., and that there are hardly any flights before 4 a.m. at all, with an average of four aircraft landing between 4 a.m. and 4.59 a.m. in 2000, and eleven between 5 a.m. and 5.59 a.m.. They maintained that the disturbance caused by these flights was extensive because the applicants and large numbers of others were affected, and it is the nature of sleep disturbance that once people are awake even a few flights will keep them awake. 112. The applicants also pointed out that the night noise they are subjected to is frequently in excess of international standards: the World Health Organisation sets as a guideline value for avoiding sleep disturbance at night a single noise event level of 60 dBA Lmax; almost all the applicants have suffered night noise events in excess of 80 dBA Lmax, and in one case as high as 90 dBA Lmax. Because of the logarithmic nature of the decibel scale, noise energy at 80 dBA Lmax is one hundred times the noise energy at 60 dBA Lmax, and in terms of subjective loudness is four times as loud. 113. The applicants contended that the 1993 Scheme was bound to, and did, result in an increase in night flights and deterioration in the night noise climate, regardless of whether the position was measured by reference to the official night period from 11 p.m. to 7 a.m. or the night quota period from 11.30 a.m. to 6 a.m.. 114. The applicants pointed to the absence of any research into sleep prevention before the 1993 Scheme, and added that post-1993 studies and proposals did not amount to an assessment of the effect of night noise on sleep prevention. They further noted the absence of any government-commissioned research into the economic benefits claimed for night flights, seeing this omission as particularly serious given that many of the world's leading business centres (for example, Berlin, Zürich, Munich, Hamburg and Tokyo) have full night-time passenger curfews of between seven and eight hours. 3. The third parties 115. British Airways, whose submissions were supported by the British Air Transport Association (BATA) and the International Air Transport Association (IATA), submitted that night flights at Heathrow play a vital role in the United Kingdom's transport infrastructure, and contribute significantly to the productivity of the United Kingdom economy and the living standards of United Kingdom citizens. They contended that a ban on, or reduction in, night flights would cause major and disproportionate damage to British Airways' business, and would reduce consumer choice. The loss of night flights would cause significant damage to the United Kingdom economy. 4. The Court's assessment 116. The case concerns the way in which the applicants were affected by the implementation in 1993 of the new scheme for regulating night flights at Heathrow. The 1993 Scheme was latest in the series of restrictions on night flights which began at Heathrow in 1962 and replaced the previous five-year 1988 Scheme. Its aims included, according to the 1993 Consultation Paper (see paragraph 36 above), both protection of local communities from excessive night noise, and taking account of the wider economic implications. The undertaking given by the government in 1988 “not to allow a worsening of noise at night, and ideally to improve it” was maintained (see paragraphs 41 and 43 above). Specifically, the scheme replaced the earlier system of movement limitations with a regime which gave aircraft operators a choice, through the quota count, as to whether to fly fewer noisier aircraft, or more less noisy types (for details, see paragraphs 44-46 above). Although modified in some respects following various judicial review proceedings (see paragraphs 47-50 and 80-83 above) and as a result of further studies and consultations (see paragraphs 51-69 above), the quota count system introduced in 1993 has remained in place to the present day, the authorities continuing to monitor the situation with a view to possible improvements (see paragraphs 70-75 above). 117. The 1993 Scheme accepted the conclusions of the 1992 sleep study (see paragraph 35 above) that for the large majority of people living near airports there was no risk of substantial sleep disturbance due to aircraft noise and that only a small percentage of individuals (some 2 to 3%) were more sensitive than others. On this basis, disturbances caused by aircraft noise were regarded as negligible in relation to overall normal disturbance rates (see paragraph 40 above). The 1992 sleep study continued to be relied upon by the government in their 1998/99 review of the regulations for night flights, when it was acknowledged that further research was necessary, in particular as regards sleep prevention, and a number of further studies on the subject were commissioned (see paragraphs 58-59 and 73 above). 118. The Court has no doubt that the implementation of the 1993 Scheme was susceptible of adversely affecting the quality of the applicants' private life and the scope for their enjoying the amenities of their respective homes, and thus their rights protected by Article 8 of the Convention. Each of the applicants has described the way in which he or she was affected by the changes brought about by the 1993 Scheme at the relevant time (see paragraphs 11-26 above), and the Court sees no reason to doubt the sincerity of their submissions in this respect. It is true that the applicants have not submitted any evidence in support of the degree of discomfort suffered, in particular they have not disproved the Government's indications as to the “objective” daytime noise contour measured at each applicant's home (ibid.). However, as the Government themselves admit, and as is evident from the 1992 sleep study on which they rely, sensitivity to noise includes a subjective element, a small minority of people being more likely than others to be woken or otherwise disturbed in their sleep by aircraft noise at night. The discomfort caused to the individuals concerned will therefore depend not only on the geographical location of their respective homes in relation to the various flight paths, but also on their individual disposition to be disturbed by noise. In the present case the degree of disturbance may vary somewhat from one applicant to the other, but the Court cannot follow the Government when they seem to suggest that the applicants were not, or not considerably, affected by the scheme at issue. 119. It is clear that in the present case the noise disturbances complained of were not caused by the State or by State organs, but that they emanated from the activities of private operators. It may be argued that the changes brought about by the 1993 Scheme are to be seen as a direct interference by the State with the Article 8 rights of the persons concerned. On the other hand, the State's responsibility in environmental cases may also arise from a failure to regulate private industry in a manner securing proper respect for the rights enshrined in Article 8 of the Convention. As noted above (see paragraph 98), broadly similar principles apply whether a case is analysed in terms of a positive duty on the State or in terms of an interference by a public authority with Article 8 rights to be justified in accordance with paragraph 2 of this provision. The Court is not therefore required to decide whether the present case falls into the one category or the other. The question is whether, in the implementation of the 1993 policy on night flights at Heathrow Airport, a fair balance was struck between the competing interests of the individuals affected by the night noise and the community as a whole. 120. The Court notes at the outset that in previous cases in which environmental questions gave rise to violations of the Convention, the violation was predicated on a failure by the national authorities to comply with some aspect of the domestic regime. Thus, in López Ostra, the waste-treatment plant at issue was illegal in that it operated without the necessary licence, and was eventually closed down ( López Ostra, cited above, pp. 46 ‑ 47, §§ 16-22). In Guerra and Others, the violation was also founded on an irregular position at the domestic level, as the applicants had been unable to obtain information that the State was under a statutory obligation to provide ( Guerra and Others, cited above, p. 219, §§ 25-27). This element of domestic irregularity is wholly absent in the present case. The policy on night flights which was set up in 1993 was challenged by the local authorities, and was found, after a certain amount of amendment, to be compatible with domestic law. The applicants do not suggest that the policy (as amended) was in any way unlawful at a domestic level, and indeed they have not exhausted domestic remedies in respect of any such claim. Further, they do not claim that any of the night flights which disturbed their sleep violated the relevant regulations, and again any such claim could have been pursued in the domestic courts under section 76(1) of the Civil Aviation Act 1982. 121. In order to justify the night flight scheme in the form in which it has operated since 1993, the Government refer not only to the economic interests of the operators of airlines and other enterprises as well as their clients, but also, and above all, to the economic interests of the country as a whole. In their submission these considerations make it necessary to impinge, at least to a certain extent, on the Article 8 rights of the persons affected by the scheme. The Court observes that according to the second paragraph of Article 8 restrictions are permitted, inter alia, in the interests of the economic well-being of the country and for the protection of the rights and freedoms of others. It is therefore legitimate for the State to have taken the above economic interests into consideration in the shaping of its policy. 122. The Court must consider whether the State can be said to have struck a fair balance between those interests and the conflicting interests of the persons affected by noise disturbances, including the applicants. Environmental protection should be taken into consideration by States in acting within their margin of appreciation and by the Court in its review of that margin, but it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights. In this context the Court must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue (see paragraph 103 above). 123. The Court notes that the introduction of the 1993 Scheme for night flights was a general measure not specifically addressed to the applicants in this case, although it had obvious consequences for them and other persons in a similar situation. However, the sleep disturbances relied on by the applicants did not intrude into an aspect of private life in a manner comparable to that of the criminal measures considered in Dudgeon to call for an especially narrow scope for the State's margin of appreciation (see Dudgeon, cited above, p. 21, § 52, and paragraph 102 above). Rather, the normal rule applicable to general policy decisions (see paragraph 97 above) would seem to be pertinent here, the more so as this rule can be invoked even in relation to individually addressed measures taken in the framework of a general policy, such as in Buckley, cited above (see paragraph 101). Whilst the State is required to give due consideration to the particular interests, the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation. The Court's supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance. 124. In the present case the Court first notes the difficulties in establishing whether the 1993 Scheme actually led to a deterioration of the night noise climate. The applicants contend that it did; the Government disagree. Statements in the 1998 Consultation Paper suggest that, generally, the noise climate around Heathrow may have improved during the night quota period, but probably deteriorated over the full night period (see paragraph 61 above). The Court is not able to make any firm findings on this point. It notes the dispute between the parties as to whether aircraft movements or quota counts should be employed as the appropriate yardstick for measuring night noise. However, it finds no indication that the authorities' decision to introduce a regime based on the quota count system was as such incompatible with Article 8. 125. Whether in the implementation of that regime the right balance has been struck in substance between the Article 8 rights affected by the regime and other conflicting community interests depends on the relative weight given to each of them. The Court accepts that in this context the authorities were entitled, having regard to the general nature of the measures taken, to rely on statistical data based on average perception of noise disturbance. It notes the conclusion of the 1993 Consultation Paper that due to their small number sleep disturbances caused by aircraft noise could be treated as negligible in comparison to overall normal disturbance rates (see paragraph 40 above). However, this does not mean that the concerns of the people affected were totally disregarded. The very purpose of maintaining a scheme of night flight restrictions was to keep noise disturbance at an acceptable level for the local population living in the area near the airport. Moreover, there was a realisation that in view of changing conditions (increase of air transport, technological advances in noise prevention, development of social attitudes, etc.) the relevant measures had to be kept under constant review. 126. As to the economic interests which conflict with the desirability of limiting or halting night flights in pursuance of the above aims, the Court considers it reasonable to assume that those flights contribute at least to a certain extent to the general economy. The Government have produced to the Court reports on the results of a series of inquiries on the economic value of night flights, carried out both before and after the 1993 Scheme. Even though there are no specific indications about the economic cost of eliminating specific night flights, it is possible to infer from those studies that there is a link between flight connections in general and night flights. In particular, the Government claim that some flights from Far-East destinations to London could arrive only by departing very late at night, giving rise to serious passenger discomfort and a consequent loss of competitiveness. One can readily accept that there is an economic interest in maintaining a full service to London from distant airports, and it is difficult, if not impossible, to draw a clear line between the interests of the aviation industry and the economic interests of the country as a whole. However, airlines are not permitted to operate at will, as substantial limitations are put on their freedom to operate, including the night restrictions which apply at Heathrow. The Court would note here that the 1993 Scheme which was eventually put in place was stricter than that envisaged in the 1993 Consultation Paper, as even the quietest aircraft were included in the quota count system. The Government have in addition resisted calls for a shorter night quota period, or for the lifting of night restrictions. The Court also notes subsequent modifications to the system involving further limitations for the operators, including, inter alia, the addition of an overall maximum number of permitted aircraft movements (see paragraph 50 above) and reduction of the available quota count points (see paragraph 66 above). 127. A further relevant factor in assessing whether the right balance has been struck is the availability of measures to mitigate the effects of aircraft noise generally, including night noise. A number of measures are referred to above (see paragraph 74). The Court also notes that the applicants do not contest the substance of the Government's claim that house prices in the areas in which they live have not been adversely affected by the night noise. The Court considers it reasonable, in determining the impact of a general policy on individuals in a particular area, to take into account the individuals' ability to leave the area. Where a limited number of people in an area (2 to 3% of the affected population, according to the 1992 sleep study) are particularly affected by a general measure, the fact that they can, if they choose, move elsewhere without financial loss must be significant to the overall reasonableness of the general measure. 128. On the procedural aspect of the case, the Court notes that a governmental decision-making process concerning complex issues of environmental and economic policy such as in the present case must necessarily involve appropriate investigations and studies in order to allow them to strike a fair balance between the various conflicting interests at stake. However, this does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided. In this respect it is relevant that the authorities have consistently monitored the situation, and that the 1993 Scheme was the latest in a series of restrictions on night flights which stretched back to 1962. The position concerning research into sleep disturbance and night flights is far from static, and it was the government's policy to announce restrictions on night flights for a maximum of five years at a time, each new scheme taking into account the research and other developments of the previous period. The 1993 Scheme had thus been preceded by a series of investigations and studies carried out over a long period of time. The particular new measures introduced by that scheme were announced to the public by way of a Consultation Paper which referred to the results of a study carried out for the Department of Transport, and which included a study of aircraft noise and sleep disturbance. It stated that the quota was to be set so as not to allow a worsening of noise at night, and ideally to improve the situation. This paper was published in January 1993 and sent to bodies representing the aviation industry and people living near airports. The applicants and persons in a similar situation thus had access to the Consultation Paper, and it would have been open to them to make any representations they felt appropriate. Had any representations not been taken into account, they could have challenged subsequent decisions, or the scheme itself, in the courts. Moreover, the applicants are, or have been, members of HACAN (see paragraph 1 above), and were thus particularly well-placed to make representations. 129. In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights. 130. There has accordingly been no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 131. The applicants contended that judicial review was not an effective remedy in relation to their rights under Article 8 of the Convention, in breach of Article 13. Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 132. The Government disputed the applicants' contention that there had been a violation of Article 13. A. The Chamber's judgment 133. In its judgment of 2 October 2001, the Chamber held that the scope of review by the domestic courts did not allow consideration of whether the increase in night flights under the 1993 Scheme represented a justifiable limitation on the Article 8 rights of those who live in the vicinity of Heathrow Airport (see paragraphs 115 and 116 above). B. The parties' submissions 1. The Government 134. In their letter requesting that the case be referred to the Grand Chamber, the Government made no reference to Article 13 of the Convention. In subsequent communications they referred back to the pleadings before the Commission and the Chamber, summarised at paragraphs 112 and 113 of the Chamber's judgment, in which they contended that Article 13 was not applicable or, in the alternative, that the scope of judicial review was sufficient to satisfy the requirements of that provision. At the hearing of 13 November 2002 the Government underlined that the present case concerned positive rather than negative obligations, and pointed to similarities between the judicial review proceedings in the United Kingdom and the Convention approach. 2. The applicants 135. The applicants contended, as they had before the Chamber, that they had no private-law rights in relation to excessive night noise, as a consequence of the statutory exclusion of liability in section 76 of the Civil Aviation Act 1982. They submitted that the limits inherent in an application for judicial review meant that it was not an effective remedy. They added that in R. (Daly) v. Secretary of State for the Home Department ([2001] 2 Appeal Cases 532), the House of Lords had confirmed the inadequacy of the approach in R. v. Minister of Defence, ex parte Smith ([1996] Queen's Bench Reports 517). C. The third parties 136. The third parties did not comment on the Article 13 issues. D. The Court's assessment 137. As the Chamber observed, Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, pp. 23-24, § 54). In the present case, it has not found a violation of Article 8, but the Court considers that confronted with a finding by the Chamber that the Article 8 issues were admissible and indeed that there was a violation of that provision, it must accept that the claim under Article 8 was arguable. The complaint under Article 13 must therefore be considered. 138. The Court would first reiterate that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State's laws to be challenged before a national authority on the ground of being contrary to the Convention (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, p. 62, § 40). Similarly, it does not allow a challenge to a general policy as such. Where an applicant has an arguable claim to a violation of a Convention right, however, the domestic regime must afford an effective remedy (ibid., p. 62, § 39). 139. As the Chamber found, section 76 of the 1982 Act prevents actions in nuisance in respect of excessive noise caused by aircraft at night. The applicants complain about the flights which were permitted by the 1993 Scheme, and which were in accordance with the relevant regulations. No action therefore lay in trespass or nuisance in respect of lawful night flights. 140. The question which the Court must address is whether the applicants had a remedy at national level to “enforce the substance of the Convention rights ... in whatever form they may happen to be secured in the domestic legal order” (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, pp. 38-40, §§ 117-27). The scope of the domestic review in Vilvarajah, which concerned immigration, was relatively broad because of the importance domestic law attached to the matter of physical integrity. It was on this basis that judicial review was held to comply with the requirements of Article 13. In contrast, in Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, §§ 135-39, ECHR 1999-VI), the Court concluded that judicial review was not an effective remedy on the ground that the domestic courts defined policy issues so broadly that it was not possible for the applicants to make their Convention points regarding their rights under Article 8 in the domestic courts. 141. The Court observes that judicial review proceedings were capable of establishing that the 1993 Scheme was unlawful because the gap between government policy and practice was too wide (see R. v. Secretary of State for Transport, ex parte Richmond LBC (no. 2) [1995] Environmental Law Reports 390). However, it is clear, as noted by the Chamber, that the scope of review by the domestic courts was limited to the classic English public-law concepts, such as irrationality, unlawfulness and patent unreasonableness, and did not at the time (that is, prior to the entry into force of the Human Rights Act 1998) allow consideration of whether the claimed increase in night flights under the 1993 Scheme represented a justifiable limitation on the right to respect for the private and family lives or the homes of those who live in the vicinity of Heathrow Airport. 142. In these circumstances, the Court considers that the scope of review by the domestic courts in the present case was not sufficient to comply with Article 13. There has therefore been a violation of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 143. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 144. The applicants, referring to the Chamber's judgment, considered that a modest award should be made in relation to non-pecuniary damage. 145. The Government took the view that a finding of a violation would constitute in itself sufficient just satisfaction in respect of a violation of either Article 8 or Article 13. 146. The Chamber awarded the applicants the sum of 4,000 pounds sterling (GBP) each for non-pecuniary damage in respect of the violations it found of Articles 8 and 13. 147. The Court has found a violation of the procedural right to an effective domestic remedy under Article 13 of the Convention in respect of the applicants' complaints under Article 8, but no violation of the substantive right to respect for private life, family life, home and correspondence under Article 8 itself. 148. The Court notes that in Camenzind v. Switzerland (judgment of 16 December 1997, Reports 1997-VIII, pp. 2897-98, § 57) the Court found a violation of Article 13 in relation to the applicant's claim under Article 8, but no substantive violation of the Convention. In that case the Court considered that the judgment constituted in itself sufficient just satisfaction for the alleged non-pecuniary damage. Furthermore, in the present case, the violation of Article 13 derived, not from the applicants' lack of any access to the British courts to challenge the impact on them of the State's policy on night flights at Heathrow Airport, but rather from the overly narrow scope of judicial review at the time, which meant that the remedy available under British law was not an “effective” one enabling them to ventilate fully the substance of their complaint under Article 8 of the Convention (see paragraphs 140-42 above). This being so, the Court considers that, having regard to the nature of the violation found, the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage. B. Costs and expenses 149. The applicants claimed a total of GBP 153,867.56 plus GBP 24,929.55 value-added tax (VAT) in respect of the costs before the Chamber, and an additional GBP 154,941.48 plus GBP 23,976.82 VAT (totalling GBP 178,918.30) before the Grand Chamber. 150. The Government made a number of comments on the costs and expenses before the Grand Chamber. They challenged the rates charged by the solicitors involved, and considered that the time billed by the solicitors was excessive. They also considered that the fees charged by counsel and the applicants' experts were excessive. Overall, they suggested GBP 109,000 as an appropriate figure for the Grand Chamber costs and expenses. 151. The Chamber reduced the costs and expenses claimed by the applicants in the proceedings up to then from GBP 153,867.56 to GBP 70,000. 152. Costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum (see The Sunday Times v. the United Kingdom (no. 1) (Article 50), judgment of 6 November 1980, Series A no. 38, p. 13, § 23). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). 153. The Court notes that whilst the Chamber found a violation of both Articles 8 and 13 of the Convention, the Grand Chamber has found solely a violation of Article 13 in relation to the applicants' claim under Article 8. Whilst this difference between the findings should be reflected in the award of costs, the Grand Chamber should not lose sight of the fact that Article 13 cannot stand alone. Without an “arguable claim” in respect of the substantive issues, the Court would have been unable to consider Article 13 (see, for example, Boyle and Rice, cited above, pp. 23-24, §§ 52 and 54). The award of costs should therefore reflect the work undertaken by the applicants' representatives on the Article 8 issues to a certain extent, even if not to the same extent as if a violation of Article 8 had also been found. 154. The Court awards the applicants the sum of 50,000 euros, including VAT, in respect of costs and expenses. C. Default interest 155. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention in its substantive aspect, finding that the Russian Government had failed in its positive obligation to protect the relevant applicants’ lives. It further held that there had been a violation of Article 2 in its procedural aspect, as it was not convinced that the judicial response to the events of August 2001 had secured the full accountability of the officials or authorities in charge. The Court also held that there had been a violation of Articles 8 (right to respect of private and family life and home) of the Convention and 1 (protection of property) of Protocol No. 1 to the Convention, finding that the responsible officials and authorities had failed to do everything in their power to protect the applicants’ rights under these provisions. Lastly, the Court held that there had been no violation of Article 13 of the Convention in conjunction with Article 8 and Article 1 of Protocol No. 1. It found in particular that Russian law provided the applicants with the possibility of bringing civil proceedings to claim compensation. The Russian courts had had at their disposal the necessary material to be able in principle to address in the civil proceedings the State’s liability and they had in principle been empowered to attribute responsibility for the events in the criminal proceedings. The fact alone that the outcome of the proceedings had been unfavourable to the applicants, as their claims had finally been rejected, could not be said to have demonstrated that the available remedies had been insufficient for the purpose of Article 13. |
1,070 | Right to a fair trial (Article 6 of the Convention) | RELEVANT LEGAL FRAMEWORK 21. Under Spanish legislation, the definition of ancillary tax obligations, the default interest, the surcharge for late payment and the application for undue payment are regulated under the General Tax Act. These sections read as follows: Section 25. Ancillary tax obligations “1. Ancillary tax obligations are the obligations other than those included in this section that consist of monetary payments to be made to the Tax Administration and whose payment is ordered in connection with another tax obligation. Obligations to settle default interest, and surcharges for late declaration and those relating to the enforcement period as well as others imposed by law, shall have the nature of ancillary tax obligations. 2. Tax penalties are not considered ancillary obligations.” Section 26. Default interest “1. Default interest is an ancillary obligation that will be required of taxpayers and tax defaulters as a result of making a payment after the deadline or submitting a self-assessment tax return or declaration resulting in an amount being payable once the term established for this purpose in the tax regulations has expired, after the collection of an undue refund or in other cases provided for in the tax regulations. The requirement for default interest on tax does not need prior notification from the Administration or the existence of a culpable delay on the part of the obligor. 2. Default interest shall be required, inter alia, in the following cases: a) When the period established for voluntary payment of a debt resulting from a settlement made by the Administration or a penalty ends, without the payment having been made. b) When the term established for the submission of a self-assessment tax return or declaration ends without it having been submitted or with it having been incorrectly submitted ... ... 3. Default interest shall be calculated on the amount which has not been paid in time or on the amount of the refund unduly collected, and shall be payable during the time for which the obligor’s delay extends ... ... 6. Default interest shall be the legal interest rate in force throughout the period in which it is payable, increased by 25 per cent, unless the General State Budget Act establishes a different rate. ...” Section 28. Surcharges for the enforcement period “1. Surcharges for the enforcement period are incurred at the start of the enforcement period ... There are three types of surcharges for the enforcement period: the enforcement surcharge, the reduced surcharge for the summary enforcement procedure, and the ordinary surcharge for the summary enforcement procedure. These surcharges are mutually incompatible and are calculated on the total debt which is unpaid in the voluntary period. ... 4. The ordinary surcharge for the summary enforcement procedure will be 20 per cent ... 5. The ordinary surcharge for the summary enforcement procedure is compatible with default interest ...” Section 221. Procedure for the refund of an undue payment “1. The procedure for the recognition of the right to the refund of an undue payment shall be initiated automatically or at the request of the interested party, in the following cases: a) When there has been a duplication in the payment of tax debts or penalties. b) When the amount paid was greater than the amount to be paid as a result of an administrative measure or a self-assessment tax return. c) When amounts corresponding to tax debts or penalties have been paid after the expiry of the time-limits ... d) When tax regulations so establish. ...” 22. Section 110 of the Royal Decree 391/1996 on the rules of procedure for economic-administrative claims, which is no longer in force, read as follows: Section 110. Ordinary timing and effects “1. Once the proof of notification of the decisions rendered in a single instance has been incorporated into the case-file, the Registry of the Regional and Local Courts and the Members of the Central Court shall return all the management documents, with a certified copy of the decision, to the unit from which they originate, which shall acknowledge receipt of it. 2. If, as a consequence of the decision, any unit, body or agency should rectify the administrative measure that was the object of the claim, it shall do so within a period of fifteen days. 3. The same procedure shall be followed after the receipt of the notification of the decisions rendered in first instance has been incorporated into the case-file, when these decisions are final; however, if they are the object of appeal, the proceedings shall be sent to the competent body to examine the appeal lodged. 4. If as a result of the claim being upheld the amounts unduly paid are to be refunded, the interested party shall be entitled to the legal interest from the date of payment. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 23. The applicant complained that his right to a fair trial, as provided in Article 6 § 1 of the Convention, had been breached on account of the Audiencia Nacional ’s failure, in its judgment of 19 June 2017 and decision of 3 April 2018, to provide a reply to the applicant’s submission concerning the ancillary nature of the surcharge and interest, which proved decisive in the judgments concerning his siblings. The relevant part of Article 6 § 1 reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Admissibility 24. Although the parties did not raise the issue of applicability ratione materiae of Article 6, the Court reiterates that, as regards the civil limb of Article 6, it is not applicable to the assessment of tax and the imposition of surcharges (see Ferrazzini v. Italy [GC], no. 44759/98, § 29, ECHR 2001 ‑ VII). 25. However, concerning the applicability of the criminal limb of Article 6 § 1 of the Convention, the “ Engel criteria” are to be considered ( Engel and Others v. the Netherlands, 8 June 1976, §§ 82-83, Series A no. 22). As regards the surcharge for late payment, under the domestic law it was not classified as criminal but as part of the fiscal regime. Nevertheless, it was not intended as pecuniary compensation for damage but as a punishment to deter reoffending, which means that, in nature, its purpose was deterrent and punitive (see Jussila v. Finland [GC], no. 73053/01, § 38, ECHR 2006 ‑ XIV). Although that element alone suffices to establish the criminal character of the offence, the criminal character is further evidenced by the severity of the penalty (see Janosevic v. Sweden, no. 34619/97, § 69, ECHR 2002 ‑ VII); it amounted to 20 per cent of the tax payable as provided by section 28 of the General Tax Act, which totalled in the applicant’s case 36,004.39 euros (EUR). The Court thus concludes that the criminal limb of Article 6 § 1 is applicable. 26. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ arguments The parties’ arguments The parties’ arguments 27. The applicant submitted that, after the TEAC’s decision of 8 September 2016 had declared the payment of the main debt null and void, he had alleged before the Audiencia Nacional that, as the surcharge for late payment and default interest were ancillary to the main debt, they should equally be annulled. The judgement of the Audiencia Nacional of 19 June 2017 had dismissed his appeal without providing any reasoning with respect to his submission concerning the ancillary nature of the surcharge and interest. Moreover, when the Audiencia Nacional had been given the opportunity to amend its error by means of the application for annulment, the Audiencia Nacional, in its decision of 3 April 2018, had again failed to respond to the applicant’s argument that his submission concerning the ancillary nature of the surcharge and interest remained unresolved. The applicant argued that that submission was decisive to the outcome of the case, as proven by the fact that the appeals of his siblings had been allowed on the basis of precisely that argument. Consequently, he contended that the proceedings before the Audiencia Nacional had been unfair and contrary to Article 6 § 1 of the Convention. Additionally, he submitted that the dismissal of his appeal by the judgment of 19 June 2017, while his siblings in the same circumstances had had their appeals allowed in two judgments of 28 September 2017, had implied a breach of legal certainty, which had also amounted to a violation of Article 6 § 1. 28. The Government submitted that the judgment of the Audiencia Nacional of 19 June 2017 had been fully and thoroughly reasoned, in compliance with the requirements of Article 6 § 1 of the Convention. The Audiencia Nacional, in its decision of 3 April 2018, had duly examined all the applicant’s submissions, concluding that its previous judgment had been adequately reasoned. The Government admitted that the applicant’s siblings had received the opposite outcome in a similar situation in the judgments in their cases. However, the Government denied any breach of legal certainty, because the applicant’s case had been decided before his siblings’ cases and there had thus been no legal precedent to be followed in his case. The Court’s assessment (a) General principles (i) On divergent case-law of domestic courts 29. The Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. It is not in principle the Court’s function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts. The criteria which guide the Court in its assessment of the circumstances in which contradictory decisions by different domestic courts ruling at final instance entail a violation of the right to a fair hearing, enshrined in Article 6 § 1 of the Convention, consist in establishing, firstly, whether “profound and long-standing differences” exist in the case-law of the domestic courts; secondly, whether the domestic law provides for a mechanism for overcoming these inconsistencies; and, thirdly, whether that mechanism has been applied and, if appropriate, to what effect (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016). 30. On the other hand, the Court has also stated that one of the fundamental aspects of the rule of law is the principle of legal certainty, a principle which is implied in the Convention. Conflicting decisions in similar cases stemming from the same court which, in addition, is the court of last resort in the matter, may breach that principle and thereby undermine public confidence in the judiciary, such confidence being one of the essential components of a State based on the rule of law. In this connection, the Court has held, in cases involving one and the same applicant, that different decisions by domestic courts based on identical facts were susceptible of running contrary to the principle of legal certainty and could even amount to denial of justice (see Vusić v. Croatia, no. 48101/07, §§ 44-45, 1 July 2010, and Santos Pinto v. Portugal, no. 39005/04, §§ 40-45, 20 May 2008). (ii) On the reasoning of court decisions 31. According to the Court’s established case‑law, reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Without requiring a detailed answer to every argument advanced by the complainant, this obligation presupposes that parties to judicial proceedings can expect to receive a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings (see Orlen Lietuva Ltd. v. Lithuania, no. 45849/13, § 82, 29 January 2019). (b) Application of the general principles to the present case 32. The Court considers that the applicant raised two issues that require a separate examination: (i) the breach of legal certainty on account of the disparity between his judgment of 19 June 2017 and his siblings’ judgments of 28 September 2017, and (ii) the lack of reasoning by the Audiencia Nacional with respect to his submission concerning the ancillary nature of the surcharge and interest. The Court will analyse those issues consecutively. (i) On divergent judgments in his case and his siblings’ cases 33. The Court notes that the parties did not dispute the fact that the applicant’s siblings, despite being in identical or similar situations to the applicant, obtained favourable judgments from the Audiencia Nacional, in contrast to the outcome in the applicant’s case. The two judgments in the applicant’s siblings’ cases were delivered within a short period of time after the judgment in the applicant’s case. 34. While that divergence is a matter of concern for those involved, as already noted above, the possibility of conflicting court decisions is an inherent trait of any judicial system and cannot in itself be considered in breach of the Convention (see Svilengaćanin and Others v. Serbia, nos. 50104/10 and 9 others, § 80, 12 January 2021). 35. In the present case, the Court observes that the alleged divergence affected the applicant’s appeal as compared to the ones lodged by his siblings. The judgment on the applicant’s appeal had been adopted two months earlier than the judgment on his siblings’ appeals. The applicant did not submit that the divergence on that specific issue went against a well-established case-law on which he could have reasonably relied to expect a specific outcome of his appeal and even less that such divergence extended over any longer period than between the judgment in his case and the judgments in his siblings’ cases, and he did not provide any further examples of judgments in which such a divergence might have taken place, either before the judgment in his case of 19 June 2017 or after. In sum, the only element that could raise the issue of legal certainty is the divergent outcomes in the interpretation of a specific point of law in parallel proceedings of the applicant’s siblings, who had been subject to similar tax claims (compare to Borg v. Malta, no. 37537/13, §§ 110-11, 12 January 2016). 36. Given these circumstances, and bearing in mind that it is not its function to compare different decisions delivered by national courts, the Court concludes that there were no “profound and long-standing differences” in the relevant case-law and no breach of the principle of legal certainty to an extent incompatible with the guarantees of Article 6 § 1. 37. Accordingly, there has been no violation of Article 6 § 1 of the Convention on this account. (ii) On the reasoning of the Audiencia Nacional 38. In respect of the reasoning of the Audiencia Nacional in the applicant’s case, the Court observes that, on 8 September 2016, the TEAC declared the applicant’s payment of the main debt null and void. On the basis of that decision, the applicant submitted his pleadings before the Audiencia Nacional on 2 February 2017, arguing, among other things that, as the surcharge and interest were ancillary to the main debt, they should equally be declared null and void. 39. The Audiencia Nacional, in its judgment of 19 June 2017, addressed the same issues the administrative bodies had dealt with previously, but did not provide any reasoning concerning the applicant’s new argument that derived from the annulment of the main debt. In this respect, the judgment included the phrase “the allegations made at this time should have been made at the time when the tax was demanded ... ”. However, the Audiencia Nacional failed to explain why despite the fact that the surcharge and interest were considered ancillary under section 25 of the General Tax Act, the enforcement proceedings concerning the surcharge and interest could be pursued even in the absence of a valid enforcement title for the main debt, as declared in the TEAC’s decision of 8 September 2016 (see paragraph 11 above). 40. The Court further observes that, when the applicant lodged the application for annulment with the Audiencia Nacional, he complained of the lack of a reply to his submission concerning the ancillary nature of the surcharge and interest in the judgment of 19 June 2017. The Audiencia Nacional, in its decision of 3 April 2018, did not expressly respond to that particular submission made by the applicant. 41. As stated above, the obligation to give reasons does not require a detailed answer to every argument advanced by the complainant, but only a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings. In the present case, the applicant’s argument concerning the ancillary nature of the surcharge and interest was potentially decisive for the outcome of the case, as shown by the judgments of 28 September 2017 in the applicant’s siblings’ cases, which allowed their appeals precisely on the basis of that specific argument. 42. It is not the Court’s task to determine whether the applicant’s claims should have been allowed or not. It is not even its task to examine whether his submissions were well‑founded. However, it is not necessary for the Court to conduct such an examination in order to conclude that the applicant’s submission concerning the ancillary nature of the surcharge and interest was in any event relevant and, as noted above, potentially decisive for the outcome of the case. It therefore required a specific and express reply, which the domestic courts did not provide. In such circumstances, it is impossible to ascertain whether the Audiencia Nacional failed to examine the applicant’s submission at all, or whether it assessed and dismissed it and, if so, what were the reasons for so deciding (see, mutatis mutandis, Farzaliyev v. Azerbaijan, no. 29620/07, § 39, 28 May 2020). 43. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s right to a reasoned judgment has been breached. 44. There has accordingly been a violation of Article 6 § 1 of the Convention on this account. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 46. The applicant submitted no claim in respect of pecuniary or non-pecuniary damage. 47. The Court therefore does not award any sum under this head. 48. On the other hand, the Court has consistently held that where, as in the instant case, an individual has been the victim of proceedings that have entailed breaches of the requirements of Article 6 of the Convention, the most appropriate form of redress would, in principle, be a retrial or the reopening of the case, at the request of the interested person (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). In this connection, it notes that paragraph 2 of section 102 of the Spanish Administrative Procedure Act, as amended by Organic Law no. 7/2015 of 21 July 2015, provides for the possibility of revision of a final decision where it has been determined in a ruling of the Court that there has been a violation of the Convention or one of the Protocols thereto. Costs and expenses 49. The applicant generally claimed the reimbursement of the costs and expenses incurred before the national authorities and before the Court, without specifying any amount. 50. The Government submitted that the applicant had failed to provide any proof in support of his claim for costs and expenses. 51. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Merabishvili v. Georgia [GC], no. 72508/13, § 370, 28 November 2017). In the present case, the Court notes that the applicant did not submit any supporting document for his claim. Consequently, the Court dismisses the applicant’s claim in this regard. | The Court held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention as regards the insufficiently reasoned judgment of the Audiencia Nacional. It found that, despite the argument concerning the ancillary nature of the surcharge and interest being potentially decisive for the outcome of the case, the Audiencia Nacional’s lack of reasoning meant that it was impossible to ascertain whether that submission had been examined at all, or whether it had been assessed and dismissed and, if so, what had been the reasons for doing so. The Court further held that there had been no violation of Article 6 § 1 of the Convention as regards the alleged breach of the principle of legal certainty. Lastly, regarding just satisfaction (Article 41 of the Convention), the Court held that in this case, a retrial or the reopening of the case was a possibility under the domestic law and that that would constitute the most appropriate form of redress. |
996 | Right to liberty and security (Article 5 of the Convention) | II. RELEVANT DOMESTIC LAW A. Provisions of the Hessian Public Security and Order Act 30. The Hessian Public Security and Order Act governs the powers of the Hessian police and administrative authorities to fulfil their duty to avert dangers to public security and order (see sections 1 and 3 of the Hessian Public Security and Order Act). 31. Section 11 of the Hessian Public Security and Order Act, on general powers, provides that the police may take the measures necessary to avert a danger to public security and order in individual cases unless the following provisions of the said Act provide for specific rules on their powers. 32. Under section 31 § 1 of the Hessian Public Security and Order Act, on banning orders ( Platzverweisung ), the police may temporarily ban a person from a place or prohibit a person from entering a place in order to avert a danger. 33. Under section 32 § 1 no. 2 of the Hessian Public Security and Order Act, on custody, the police may take a person into custody if this is indispensable in order to prevent the imminent commission or continuation of a criminal or regulatory offence of considerable importance to the general public. This provision refers to the offences listed in the Criminal Code and in the Regulatory Offences Act. Under section 32 § 1 no. 3 of the said Act, a person may further be taken into custody if this is indispensable in order to enforce measures taken under section 31 of the said Act. 34. Section 33 § 1 of the Hessian Public Security and Order Act, on judicial decision, provides that where a person is detained on the basis of section 32 § 1 of the same Act, the police shall obtain, without delay, a judicial decision on the lawfulness and continuation of the deprivation of liberty. A judicial decision does not have to be obtained if it can be assumed that the decision would be made only after the grounds for the police measure ceased to exist. 35. Section 35 § 1 of the Hessian Public Security and Order Act, on the duration of deprivation of liberty, provides that a detained person shall be released as soon as the grounds for the police measure ceased to exist (no. 1) or twenty-four hours at the latest after his or her arrest if he or she has not been brought before a judge before that lapse of time (no. 2). The detained person shall equally be released if the continuation of the deprivation of liberty is declared unlawful by judicial decision (no. 3). The person concerned shall further be released in any case by the end of the day following his or her arrest at the latest if the continuation of the deprivation of liberty has not been ordered by judicial decision before that time. The judicial decision on detention under section 32 § 1 no. 2 must fix the maximum duration of detention which may not exceed six days (no. 4). 36. Section 40 no. 4 of the Hessian Public Security and Order Act provides that the police may seize an object if there are concrete reasons to assume that it will be used in order to commit a criminal or regulatory offence. B. Provisions of criminal law 37. Under Article 125 of the Criminal Code, breach of the peace – or rioting – shall be punished with up to three years’ imprisonment or a fine. A person is guilty of breach of the peace if he or she participates in acts of violence against persons or objects or in threats to persons to commit acts of violence which are committed by a crowd of people together in a manner posing a threat to public security. The same applies if the perpetrator encourages a crowd to commit such acts. 38. Article 223 of the Criminal Code, on bodily injury, provides that whoever physically assaults or damages the health of another person shall be liable to imprisonment of up to five years or a fine. Under Article 224 of the Criminal Code, on dangerous bodily injury, whoever causes bodily injury, in particular, by using a weapon or other dangerous instrument, by acting jointly with others or by a treatment posing a risk to life shall be liable to imprisonment from six months up to ten years, in less serious cases from three months to five years. 39. Article 231 of the Criminal Code, on participation in a brawl, provides that whoever takes part in a brawl or in an attack committed jointly by several persons shall be liable to imprisonment of up to three years or a fine for that participation alone if the death of a person or a serious bodily injury (Article 226 of the Criminal Code) was caused by that brawl or attack. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 40. The applicant complained that his detention for preventive purposes in the context of the football match on 10 April 2004 had violated his right to liberty as provided in Article 5 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. ...” 41. The Government contested that argument. A. Admissibility 42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 43. The applicant took the view that his detention had violated Article 5 § 1 of the Convention. He argued that the deprivation of his liberty failed to comply with any of the sub-paragraphs (a) to (f) of Article 5 § 1. (i) Justification under sub-paragraph (c) of Article 5 § 1 44. The applicant submitted, in particular, that his detention could not have been “reasonably considered necessary to prevent his committing an offence” for the purposes of sub-paragraph (c) of Article 5 § 1. There had not been a sufficient suspicion that he had to be prevented from committing an unlawful act. The police’s suspicion in this respect had only been based on his entry into the database of the Bremen police as a person prepared to use violence in the context of sports events. As the entries in that database were wrong and unlawful and as he had never been in a position to have examined his entry in that database before the domestic courts, the fact that he figured in that database could not have raised any sufficient suspicion that he was about to commit an offence. Without that unlawful entry into the police database, he would never have been taken into custody as a supposed gang leader of football hooligans. In any event, according to the information contained in that database, he had allegedly been involved in only ten incidents during a period of more than seven years and had been detained only once. Given the large number of football matches he had been present at, the small number of incidents did not justify his classification as a violent offender. 45. The applicant stressed that, in the factual circumstances of the case, the police’s suspicion that the commission of a criminal offence by him had been imminent had been completely unfounded. He had separated from the group of Bremen football fans in the pub as he still had to pay and had to go to the bathroom which he had informed the police of. He had gone to the ladies’ room as the men’s room was in a poor state. A police officer and a male person from Frankfurt had approached him there and he had left the pub with the police without resistance before he had been taken into custody. 46. Moreover, the applicant argued that his detention had, in any event, been unnecessary. The police had had the situation fully under control. Due to their police surveillance and the previous seizure of objects considered as dangerous, the commission of any offence by the group of unarmed football fans would have been impossible. It would have been sufficient in order to avert a hooligan brawl prior to the match to escort the applicant together with the Bremen group of football fans to the football stadium or to simply separate him from the Bremen group and to seize his mobile phone without taking him into custody. (ii) Justification under sub-paragraph (b) of Article 5 § 1 47. The applicant further argued that his detention had not been covered by sub-paragraph (b) of Article 5 § 1 either. It had neither been based on a court order nor had it been ordered to secure the fulfilment of any statutory obligation. (b) The Government 48. The Government took the view that the applicant’s custody had complied with Article 5 § 1 of the Convention. The applicant’s detention, based on section 32 § 1 no. 2 of the Hessian Public Security and Order Act, had been lawful. It had further been justified under both sub-paragraph (c) and sub-paragraph (b) of Article 5 § 1. (i) Justification under sub-paragraph (c) of Article 5 § 1 49. In the Government’s submission, the applicant’s detention had been justified under sub-paragraph (c) of Article 5 § 1 in the first place, as it had been “reasonably considered necessary to prevent his committing an offence”. They stressed that the applicant had not yet committed a criminal offence as his preparatory acts arranging a hooligan brawl were not punishable under German law. However, the applicant had to been taken into custody by the police for preventive purposes as the police had reasonably considered his detention necessary in order to stop him from committing serious offences, in particular bodily injuries, breaches of the peace and participation in a brawl (Articles 223, 125 and 231 of the Criminal Code, see paragraphs 37-39 above), in the context of the football match. 50. The Government stressed that the applicant was a hooligan seeking violent altercations. Since the end of the 1980s, the applicant, who held right-wing extremist views and has worked for the right-wing National ‑ Democratic Party of Germany ( Nationaldemokratische Partei Deutschlands ), has belonged to a group of nationalist football fans in Bremen classified by the police as “hooligans seeking violence” (so-called category C fans). He has been identified as one of the leaders of that group notably during a previous demonstration of hooligans against travel restrictions organised and animated by him. He has previously been convicted of breach of the peace in 1994 and criminal investigation proceedings were opened against him on a number of occasions, inter alia, for breaches of the peace and bodily injury. 51. In the Government’s view, preventive police custody as that of the applicant was covered by sub-paragraph (c) of Article 5 § 1, despite the fact that it was not connected with criminal proceedings as required in the Court’s current case-law, if it was indispensable to avert an imminent, specific criminal offence. This was confirmed by the wording of Article 5 § 1 (c), second alternative, which authorised detention of a person “when it is reasonably considered necessary to prevent his committing an offence”. It was not necessary that the person concerned had already committed a criminal offence as this situation was covered by the first alternative of Article 5 § 1 (c) – detention “on reasonable suspicion of having committed an offence” – and the second alternative would be superfluous otherwise. Police custody for preventive purposes, which was only authorised as a measure of last resort in order to avert imminent serious offences, also did not amount to arbitrary detention. 52. Furthermore, the State’s duty flowing from Articles 2 and 3 of the Convention to protect the public from offences should be taken into account in the interpretation of Article 5 § 1 and militated in favour of an authorisation of preventive police custody under that provision. 53. The Government further argued that the fact that everyone detained in accordance with the provisions of paragraph 1 (c) of Article 5 § 1 was entitled, under Article 5 § 3 of the Convention, to “trial within a reasonable time” did not warrant the conclusion that Article 5 § 1 (c) only covered pre ‑ trial detention. It was true that no criminal trial would be held in respect of persons held in police custody for preventive purposes as they were not accused of a criminal offence. However, the duty to bring a detainee promptly before a judge, as equally required by Article 5 § 3, also applied to persons in preventive police custody. The term “trial”, in these circumstances, had to be understood as referring to the judicial decision on the lawfulness of the preventive police custody of the person concerned. 54. The Government stressed that the possibility to have recourse to such custody for preventive purposes was indispensable for the police in order to maintain public security and order. All German Länder therefore had provisions similar to those applicable in Hesse, which authorised custody for preventive purposes for a short period where this was indispensable to avert an imminent significant criminal or regulatory offence. The authorisation of custody for preventive purposes was particularly important in cases of imminent domestic violence or where there was a risk of clashes provoked by violent participants or counter ‑ demonstrators in the context of demonstrations of right-wing or left-wing groups. Likewise, preventive police custody served to prevent persons ready to block the transport of casks for the storage and transport of radioactive material (CASTOR) on streets or by train from doing so. The weekly football matches of the German Federal football league and football championships, in particular, could no longer be carried out in a peaceful manner without taking recalcitrant hooligans provoking violent clashes with rival hooligans into preventive police custody. Finally, altercations between drunk persons in pubs or on fairs could often not be prevented without taking the person(s) concerned in preventive police custody. 55. Such preventive police custody was particularly important in Germany where, contrary to the applicable law in other Member States, criminal law punished acts by which an offence was prepared only in exceptional cases. Thereby, potential offenders were incited to give up their plans to commit an offence (without being punishable). However, in order to protect potential victims effectively, the police could not await the commission of an offence and the occurrence of serious damage prior to their intervening. It would, however, run counter to the protection of fundamental rights if, in order for a preventive custody to comply with Article 5 § 1 (c) (first alternative), the State had to provide for more preparatory acts to be punishable under criminal law. 56. There had been no less intrusive means than the applicant’s detention for a short duration in order to achieve the aim of crime prevention. The applicant no longer had to be brought before a judge as required by Article 5 § 3 as a court decision could not have been obtained before the end of the applicant’s short detention. Requiring a court order would therefore have deprived the applicant of his liberty longer than necessary. The applicant had been free to obtain a court decision on the lawfulness of his detention after his release. (ii) Justification under sub-paragraph (b) of Article 5 § 1 57. The applicant had further been arrested and detained in compliance with sub-paragraph (b) of Article 5 § 1 in order to secure the fulfilment of an obligation prescribed by law. Prior to his detention, the applicant had repeatedly been warned by the police, notably by police officer G., that the group of hooligans he had been part of would be escorted by the police on the way to the football stadium and that everyone who left that group might be arrested. It had been clear to the applicant that the police’s order had been aimed at preventing arrangements of altercations with other hooligan groups. The applicant had failed to comply with the police’s order, which had implemented his obligation prescribed by law – section 11 of the Hessian Public Security and Order Act (see paragraph 31 above) – to remain with the group and not to arrange an altercation. As it had been clear from his conduct that he would not comply with that order in the future, he had been taken into custody under section 32 § 1 no. 2 of the Hessian Public Security and Order Act. 58. The order had been lawful as there had been sufficient facts to indicate that the applicant – known to the police as a violence-seeking hooligan holding right-wing extremist views – had intended to evade the police escort in order to organise by mobile phone and take part in an altercation between hooligans supporting Eintracht Frankfurt football club and hooligans supporting Werder Bremen football club before or after the football match. The police could reasonably base that assumption on their surveillance of the applicant prior to his arrest. The applicant had been observed speaking to a hooligan from Frankfurt am Main and had given no plausible explanation why he had attempted to evade police surveillance by hiding in the ladies’ toilets. The Government contested in particular that the applicant had informed the police that he still had to pay and to go to the restroom prior to leaving the group. 59. Moreover, the applicant had been identified by the Bremen police as the leader of a group of violence-seeking hooligans during many years of surveillance and criminal investigation proceedings had been opened for related offences against him on several occasions. Furthermore, objects typically serving to attack or defend oneself during hooligan altercations had been found on members of the applicant’s group. In addition, the police had generally experienced that hooligans, as a rule, fixed the time and place of altercations with rival hooligan groups in advance. During the altercation which the applicant had attempted to arrange, significant offences punishable under the Criminal Code, in particular bodily injuries, breaches of the peace and participation in a brawl, would have been committed by the applicant and the other hooligans involved. 60. The Government stressed in that context that, contrary to the applicant’s view, the police’s estimation that he had planned to organise an altercation between hooligans had not been based on the lawful entries concerning him in the database on violent football fans. At the time the Frankfurt am Main police had taken the applicant into custody, they had not been aware of those entries. The Bremen police had only informed them that the applicant was the leader of a group of violence-seeking hooligans travelling to Frankfurt. The police’s view that he posed a threat to public security and his detention had not, therefore, been predetermined by his entry into that database. 61. The applicant’s detention had also been proportionate. The applicant had persistently refused to comply with the police’s orders. Moreover, there had been no effective alternative way to keep him under surveillance before and during the football match in order to prevent him from organising and taking part in an altercation between hooligans after the match. In particular, separating him from the group and seizing his mobile phone would have been insufficient to prevent him from organising a brawl with a different telephone. The duration of the custody of four hours had been the minimum period necessary as his detention had been necessary until the football match had been over and the hooligan groups had left the football stadium and its vicinity. The applicant’s custody had served to prevent serious criminal offences and to maintain public order as no altercation between hooligans from Frankfurt and Bremen had taken place as a result of that custody. 62. The Government stressed that the police could not be expected to wait for the altercation to start before terminating it, which would have been very difficult, if not impossible, would necessitate a considerable number of police officers and entail dangers for life and limb of those officers as well as of uninvolved third persons. It would also not have sufficed to issue the applicant with a banning order under section 31 § 1 of the Hessian Public Security and Order Act (see paragraph 32 above). The banning order would have had to comprise the entire city of Frankfurt am Main as a hooligan altercation could have been organised anywhere within that city. The police would have been unable to control whether the applicant complied with such an order. 2. The Court’s assessment (a) Recapitulation of the relevant principles (i) Deprivation of liberty 63. The Court reiterates that Article 5 § 1 protects the physical liberty of the person. It does not concern mere restrictions upon liberty of movement, which are addressed by Article 2 of Protocol no. 4 (see Engel and Others v. the Netherlands, 8 June 1976, § 58, Series A no. 22; Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39; and Raimondo v. Italy, 22 February 1994, § 39, Series A no. 281 ‑ A). 64. The Convention institutions have repeatedly found that being brought to a police station against one’s will and being held in a cell amounted to a deprivation of liberty, even if the interference lasted for a relatively short duration (see, for instance, Murray v. the United Kingdom [GC], 28 October 1994, §§ 49 ss., Series A no. 300 ‑ A, concerning custody at an army centre for less than three hours for questioning; Novotka v. Slovakia (dec.), no. 47244/99, 4 November 2003 with further references, concerning one hour spent in police custody; Shimovolos v. Russia, no. 30194/09, §§ 49-50, 21 June 2011, concerning police custody of 45 minutes for questioning; see also Witold Litwa v. Poland, no. 26629/95, § 46, ECHR 2000 ‑ III, concerning confinement for six and a half hours in a sobering-up centre). (ii) Grounds for detention 65. The Court reiterates that sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia, Witold Litwa, cited above, § 49; Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008; and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 60, ECHR 2012). Only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his liberty (see, among many others, Shimovolos, cited above, § 51). 66. Under the second alternative of sub-paragraph (c) of Article 5 § 1, the detention of a person may be justified “when it is reasonably considered necessary to prevent his committing an offence”. Article 5 § 1 (c) does not, thereby, permit a policy of general prevention directed against an individual or a category of individuals who are perceived by the authorities, rightly or wrongly, as being dangerous or having propensity to unlawful acts. That ground of detention does no more than afford the Contracting States a means of preventing a concrete and specific offence (see Guzzardi, cited above, § 102; Ciulla v. Italy, 22 February 1989, § 40, Series A no. 148; and Shimovolos, cited above, § 54) as regards, in particular, the place and time of its commission and its victim(s) (see M. v. Germany, no. 19359/04, §§ 89 and 102, ECHR 2009). This can be seen both from the use of the singular (“an offence”) and from the object of Article 5, namely to ensure that no one should be dispossessed of his liberty in an arbitrary fashion (see Guzzardi, cited above, § 102; and M. v. Germany, cited above, § 89). 67. Under the Court’s well-established case-law, detention to prevent a person from committing an offence must, in addition, be “effected for the purpose of bringing him before the competent legal authority”, a requirement which qualifies every category of detention referred to in Article 5 § 1 (c) (see Lawless v. Ireland (no. 3), 1 July 1961, pp. 51-53, § 14, Series A no. 3; and, mutatis mutandis, Engel and Others, cited above, § 69; and Jėčius v. Lithuania, no. 34578/97, §§ 50-51, ECHR 2000 ‑ IX). 68. Sub-paragraph (c) thus permits deprivation of liberty only in connection with criminal proceedings (see Ječius, cited above, § 50). It governs pre-trial detention (see Ciulla, cited above, §§ 38-40). This is apparent from its wording, which must be read in conjunction both with sub-paragraph (a) and with paragraph 3, which form a whole with it (see, inter alia, Ciulla, cited above, § 38; and Epple v. Germany, no. 77909/01, § 35, 24 March 2005). Paragraph 3 of Article 5 states that everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of Article 5 shall be brought promptly before a judge – in any of the circumstances contemplated by the provisions of that paragraph – and shall be entitled to trial within a reasonable time (see also Lawless (no. 3), cited above, pp. 51 ‑ 53, § 14; and Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 72, ECHR 2011 (extracts)). 69. Detention is further authorised under the second limb of sub ‑ paragraph (b) of Article 5 § 1 to “secure the fulfilment” of an obligation prescribed by law. It concerns cases where the law permits the detention of a person to compel him to fulfil a specific and concrete obligation incumbent on him, and which he has until then failed to satisfy (see, inter alia, Engel and Others, cited above, § 69; Guzzardi, cited above, § 101; Ciulla, cited above, § 36; Epple, cited above, § 37; A.D. v. Turkey, no. 29986/96, § 20, 22 December 2005; and Lolova-Karadzhova v. Bulgaria, no. 17835/07, § 29, 27 March 2012). 70. A wide interpretation of sub-paragraph (b) of Article 5 § 1 would entail consequences incompatible with the notion of the rule of law from which the whole Convention draws its inspiration (see Engel and Others, cited above, § 69; and Iliya Stefanov v. Bulgaria, no. 65755/01, § 72, 22 May 2008). That provision therefore does not justify, for example, administrative internment meant to compel a citizen to discharge his general duty of obedience to the law (see Engel and Others, cited above, § 69; and Schwabe and M.G., cited above, § 73). Likewise, the duty not to commit a criminal offence in the imminent future cannot be considered sufficiently concrete and specific to fall under Article 5 § 1 (b), at least as long as no specific measures have been ordered which have not been complied with (see Schwabe and M.G., cited above, § 82). 71. In order to be covered by Article 5 § 1 (b), the arrest and detention must further aim at or directly contribute to securing the fulfilment of the obligation and not be punitive in character (see already Johansen v. Norway, no. 10600/83, Commission decision of 14 October 1985, Decisions and Reports (DR) 44, p. 162; Vasileva v. Denmark, no. 52792/99, § 36, 25 September 2003; Gatt v. Malta, no. 28221/08, § 46, ECHR 2010; Osypenko v. Ukraine, no. 4634/04, § 57, 9 November 2010; and Soare and Others v. Romania, no. 24329/02, § 236, 22 February 2011). If sub ‑ paragraph (b) could be extended to cover punishments, such punishments would be deprived of the fundamental guarantees of sub ‑ paragraph (a) (see Engel and Others, cited above, § 69; and Johansen, cited above, p. 162). 72. In addition, it is required that the nature of the obligation within the meaning of Article 5 § 1 (b) whose fulfilment is sought must in itself be compatible with the Convention (see already McVeigh, O’Neill and Evans v. the United Kingdom, nos. 8022/77, 8025/77 and 8027/77, Commission’s report of 18 March 1981, DR 25, p. 15, § 176; and Johansen, cited above, p. 162). As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (see Vasileva, cited above, § 36; Epple, cited above, § 37; Osypenko, cited above, § 57; Sarigiannis v. Italy, no. 14569/05, § 43, 5 April 2011; and Lolova-Karadzhova, cited above, § 29). 73. Finally, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty (see Vasileva, cited above, § 37; Epple, cited above, § 37; and Gatt, cited above, § 46). The nature of the obligation arising from the relevant legislation including its underlying object and purpose, the person being detained and the particular circumstances leading to the detention as well as its duration are relevant factors in drawing such a balance (see Vasileva, cited above, §§ 37-38 with further references; Iliya Stefanov, cited above, § 72; Gatt, cited above, § 46; and Soare and Others, cited above, § 236). (iii) Lawfulness of detention 74. The Court further reiterates that Article 5 § 1 of the Convention requires that any deprivation of liberty be “lawful”, which includes the condition that it must be effected “in accordance with a procedure prescribed by law”. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see, inter alia, Witold Litwa, cited above, §§ 72-73; and Vasileva, cited above, § 32). (b) Application of these principles to the present case (i) Deprivation of liberty 75. The Court has to determine, first, whether the applicant’s arrest and confinement in the context of the football match on 10 April 2004 amounted to a deprivation of liberty for the purposes of Article 5 § 1. It notes that the applicant was arrested by the police in a pub in Frankfurt am Main at approximately 2.30 p.m. and was brought to and detained in a police station against his will until approximately 6.30 p.m. in order to prevent him from committing an offence. Having regard to its case-law (see paragraph 64 above), the Court considers that, despite the relatively short duration of the detention, the applicant was thereby deprived of his liberty within the meaning of Article 5 § 1. The Government indeed did not contest this. (ii) Ground for detention 76. That detention was justified only if it complied with one of the permissible grounds for a deprivation of liberty listed in sub-paragraphs (a) to (f) of Article 5 § 1. (α) Justification under sub-paragraph (c) of Article 5 § 1 77. As the Government’s argument focused on the compatibility of the applicant’s custody for preventive purposes with sub-paragraph (c) of Article 5 § 1, the Court shall examine the compliance with that ground of detention first. 78. It is common ground between the parties that at the time of his arrest, the applicant had not yet committed a criminal offence under German law. He was not, therefore, detained “on reasonable suspicion of having committed an offence” within the meaning of the first alternative of Article 5 § 1 sub-paragraph (c). However, the second alternative of Article 5 § 1 (c) authorises the detention of a person also “when it is reasonably considered necessary to prevent his committing an offence”. The applicant contested, in particular, that in the circumstances of the case, the police could reasonably have considered his custody necessary to prevent an offence. 79. The Court notes that the Frankfurt am Main police based their assessment that the applicant had been preparing and had planned to take part in a hooligan brawl and had thus prepared offences including bodily assault and breaches of the peace on a number of factual elements. Irrespective of the entries on the applicant in police databases, the Frankfurt am Main police had been informed by the Bremen police that the latter, who had been observing the applicant for several years, considered the applicant as the leader of a group of football hooligans prepared to use violence. When searching the group of football supporters at Frankfurt am Main central station, the police had found a number of devices typically used in hooligan brawls on members of the applicant’s group. The applicant had further been observed speaking to a hooligan from Frankfurt am Main in the pub. Despite the police’s order to stay with the group which was to be escorted to the football stadium in order to prevent the arrangement or start of a hooligan brawl, the applicant had separated from the group and hidden himself in the ladies’ restroom. It has not been proven in the proceedings before the domestic courts that the applicant had given any plausible explanation to the policeman having found him there at the relevant time as to why he had gone there (such as the poor state of the men’s restroom). When his mobile phone then rang, it displayed a name from a person from Frankfurt am Main. 80. The Court is satisfied that, in these circumstances, the Frankfurt am Main police, who had not based their findings on entries on the applicant in a police database on persons prepared to use violence in the context of sports events (see paragraph 24 above), had had sufficient facts and information which would satisfy an objective observer that the applicant was planning to arrange and take part in a hooligan brawl in or around Frankfurt am Main, during which concrete and specific criminal offences, namely bodily assaults and breaches of the peace, would be committed (see, a contrario, Shimovolos, cited above, § 55, where a vague reference to “offences of an extremist nature” to be committed by a human rights activist who was to take part in an opposition rally was considered as not specific enough to satisfy the requirements of Article 5 § 1 (c)). His detention could thus be classified as effected “to prevent his committing an offence”. 81. As regards the question whether the applicant’s detention was “reasonably considered necessary” (see for the definition of “reasonableness”, mutatis mutandis, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182; O’Hara v. the United Kingdom, no. 37555/97, § 34, ECHR 2001 ‑ X; and Labita v. Italy [GC], no. 26772/95, § 155, ECHR 2000 ‑ IV) in order to avert the commission of those offences, the Court observes that according to the police’s experience, which is not contested by the applicant, hooligan brawls are usually arranged in advance, but do not take place inside or close to the football stadium. The Court is therefore satisfied that seizing the applicant’s telephone alone and possibly separating him from his group, would not have been sufficient in itself to prevent him from arranging a brawl since he could have had access to another telephone. Moreover, the detention lasted some four hours, and only until approximately one hour after the end of the football match, when the football supporters had left the stadium and its surroundings and a brawl had thus become unlikely. The police could reasonably consider in these circumstances that the applicant’s detention for a relatively short duration was necessary to prevent his committing an offence (see, a contrario, Schwabe and M.G., cited above, §§ 76-78). 82. The Court, however, recalls that under paragraphs 1 (c) and 3 of Article 5, detention to prevent a person from committing an offence must, in addition, be “effected for the purpose of bringing him before the competent legal authority” and that that person is “entitled to trial within a reasonable time”. Under its long-established case-law, the second alternative of Article 5 § 1 (c) therefore only governs pre-trial detention and not custody for preventive purposes without the person concerned being suspected of having already committed a criminal offence (see paragraphs 66-68 above). 83. Having regard to the legal basis of the applicant’s detention – section 32 § 1 no. 2 of the Hessian Public Security and Order Act, a provision aimed exclusively at preventing and not at prosecuting offences – and the reasons given by the domestic authorities and courts for his custody, it is, however, clear that the aim of his detention was purely preventive from the outset. As noted above, it is indeed uncontested that the applicant in the present case was not suspected of having committed a criminal offence as his preparatory acts were not punishable under German law. His police custody only served the (preventive) purpose of ensuring that he would not commit offences in an imminent hooligan altercation. He was to be released once the risk of such an altercation had ceased to exist and his detention was thus not aimed at bringing him before a judge in the context of a pre-trial detention and at committing him to a criminal trial. 84. The Court notes that the Government advocated a revision of the Court’s case-law on the scope of Article 5 § 1 (c) in this respect. It agrees with the Government that the wording of the second alternative of sub ‑ paragraph (c) of Article 5 § 1, in so far as it permits detention “when it is reasonably considered necessary to prevent his committing an offence”, would cover purely preventive police custody in order to avert imminent specific serious offences which is here at issue. 85. However, that interpretation could neither be reconciled with the entire wording of sub-paragraph (c) of Article 5 § 1 nor with the system of protection set up by Article 5 as a whole. Sub-paragraph (c) of Article 5 § 1 requires that the detention of the person concerned is “effected for the purpose of bringing him before the competent legal authority” and under Article 5 § 3 that person is “entitled to trial within a reasonable time”. As the Court has confirmed in its case-law on many occasions, the second alternative of Article 5 § 1 (c) is consequently only covering deprivation of liberty in connection with criminal proceedings. In particular, contrary to the Government’s submission, the term “trial” does not refer to a judicial decision on the lawfulness of the preventive police custody. Those proceedings are addressed in paragraph 4 of Article 5. 86. The Court further observes that, contrary to the Government’s view, the second alternative of Article 5 § 1 cannot be considered as superfluous in addition to the first alternative of that provision (detention “on reasonable suspicion of having committed an offence”). A detention under sub ‑ paragraph (c) of Article 5 § 1 may be ordered, in particular, against a person having carried out punishable preparatory acts to an offence in order to prevent his committing that latter offence. That person may then be brought before a judge and be put on a criminal trial, for the purposes of Article 5 § 3, in respect of the punishable preparatory acts to the offence. 87. The Court further takes note of the Government’s argument that the State’s obligation under Articles 2 and 3 of the Convention to protect the public from offences should be taken into account in the interpretation of Article 5 § 1 and warranted an authorisation of preventive police custody under that provision. It reiterates in this respect that the Convention obliges State authorities to take reasonable steps within the scope of their powers to prevent threats to life or ill ‑ treatment of which they had or ought to have had knowledge, but it does not permit a State to protect individuals from criminal acts of a person by measures which are in breach of that person’s Convention rights, in particular the right to liberty as guaranteed by Article 5 § 1. That provision can thus be said to contain all grounds on which a person may be deprived of his liberty in the public interest, including the interest in protecting the public from crime (see Jendrowiak v. Germany, no. 30060/04, §§ 37-38, 14 April 2011). The State’s positive obligations under different Convention Articles do not, therefore, as such warrant for a different or wider interpretation of the permissible grounds for a deprivation of liberty exhaustively listed in Article 5 § 1. 88. The Court is aware of the importance, in the German legal system, of preventive police custody in order to avert dangers to the life and limb of potential victims or significant material damage, in particular, in situations involving the policing of large groups of people during mass events, as set out by the Government (see paragraph 54 above). It reiterates that Article 5 cannot be interpreted in such a way as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public – provided that they comply with the underlying principle of Article 5, which is to protect the individual from arbitrariness (see Austin and Others, cited above, § 56). 89. Nevertheless, as outlined above, it follows from the Court’s long ‑ standing interpretation of Art. 5 § 1 (c) that the applicant’s detention cannot be justified under this sub-paragraph. The Court considers, however, that Article 5 § 1 of the Convention, and in particular its sub-paragraph (b), leaves room for custody for preventive purposes in the limited circumstances set out in it. ( β ) Justification under sub-paragraph (b) of Article 5 § 1 90. The Court must therefore examine whether, as has also been argued by the Government, the applicant’s detention was justified under the second limb of Article 5 § 1 (b) “in order to secure the fulfilment of an[y] obligation prescribed by law”. As established in the Court’s case-law (see paragraph 69 above), it is necessary for a detention to fall under that permissible ground for a deprivation of liberty, firstly, that the law permits the detention of the person concerned to compel him to fulfil a specific and concrete obligation incumbent on him, which he has until then failed to satisfy. 91. The Court notes in this respect that the applicant’s detention was ordered by the police under section 32 § 1 no. 2 of the Hessian Public Security and Order Act. Under that provision, the police was entitled, as a measure to avert an imminent danger, to take a person into custody if this was indispensable to prevent the imminent commission of a criminal offence of considerable importance to the general public (see paragraph 33 above). In the present case, the police took the applicant into custody in order to prevent him from arranging a brawl between hooligans from Bremen and rival hooligans from Frankfurt am Main in the context of the football match on 10 April 2004 in the city of Frankfurt or its vicinity and from committing offences including bodily assaults and breaches of the peace during that brawl. 92. In determining whether this obligation incumbent on the applicant – to keep the peace by not setting up and taking part in a hooligan brawl at the said time and place – can be considered as sufficiently “specific and concrete” for the purposes of sub ‑ paragraph (b) of Article 5 § 1, the Court shall have regard to the obligations which it previously considered as falling within the ambit of that ground for detention. It has found, for instance, that the duty to comply with a banning order was, in principle, an obligation covered by that provision (see Epple, cited above, §§ 36-38). Likewise, the Court considered that the statutory obligation to give evidence as a witness was sufficiently specific and concrete for the purposes of Article 5 § 1 (b) and could thus be enforced by detention in a police station (see, in particular, Iliya Stefanov, cited above, §§ 73-75; and Soare and Others, cited above, §§ 234-239). The same holds true for detention in order to enforce a statutory obligation to disclose one’s identity to the police (see, inter alia, Vasileva, cited above, §§ 35, 38; Novotka, cited above; and Sarigiannis, cited above, §§ 42-44) and (proportionate) detention to secure a person’s presence at a court hearing (see Lolova-Karadzhova, cited above, §§ 31-32). Furthermore, the Court has considered the obligations to perform one’s civilian service (see Johansen, cited above, p. 162) or to pay a guarantee in the case of breach of one’s bail conditions (see Gatt, cited above, § 47) as sufficiently concrete and specific so as to fall under sub ‑ paragraph (b) of Article 5 § 1. 93. In the Court’s view, these examples illustrate that the “obligation” under Article 5 § 1 (b) must be very closely circumscribed. It follows that the obligation here at issue, namely, to keep the peace by not committing a criminal offence can only be considered as “specific and concrete” for the purposes of that provision if the place and time of the imminent commission of the offence and its potential victim(s) have been sufficiently specified. The Court is satisfied that this was the case here. The applicant was to be prevented from arranging a brawl between Bremen and Frankfurt am Main hooligans in the hours before, during or in the hours after the football match on 10 April 2004 in the city of Frankfurt or its vicinity and from committing offences including bodily assaults and breaches of the peace during such a brawl. 94. Moreover, prior to his detention, the applicant must have failed to fulfil his obligation to keep the peace by not committing a specific and concrete offence. In cases in which this type of obligation is at issue, it is sufficient if the applicant has taken clear and positive steps which indicate that he will not fulfil his obligation. The Court considers that this requirement bears special importance in the context of a duty to refrain from doing something such as the one in issue here, as distinct from a duty to perform a specific act (such as leaving a place, appearing in court, giving evidence as a witness or disclosing one’s identity). In order to ensure, in accordance with the purpose of Article 5, that individuals are not subjected to arbitrary detention in such circumstances, it is necessary, prior to concluding that a person has failed to satisfy his obligation at issue, that the person concerned was made aware of the specific act which he or she was to refrain from committing and that the person showed himself or herself not to be willing to refrain from so doing. 95. In the present case, the applicant was ordered by the police, prior to his arrest, to stay with the group of football supporters with whom he had travelled from Bremen and who were to be escorted by the police to the football stadium. He was further warned in a clear manner of the consequences of his failure to comply with that order as the police had announced that any person leaving the group would be arrested. Moreover, the group had already been escorted on their train trip from Bremen to Frankfurt and had been searched at Frankfurt am Main central station and had been found to be in possession of instruments typically used in hooligan brawls. The Court considers that, by these measures, the applicant had been made aware of the fact that the police intended to avert a hooligan brawl and that he was under a specific obligation to refrain from arranging and/or participating in such a brawl in the city of Frankfurt or its vicinity on the day in question (compare, a contrario, Schwabe and M.G., cited above, § 82). 96. Furthermore, the Court is satisfied that the domestic authorities could reasonably conclude that the applicant, by trying to evade police surveillance and by entering into contact with a hooligan from Frankfurt am Main, was attempting to arrange a hooligan brawl. By taking these clear and positive steps or preparatory acts, the applicant had shown that he was not willing to comply with his obligation to keep the peace by refraining from arranging and/or participating in the altercation at issue. 97. The Court must verify, secondly, whether the applicant’s detention was aimed at or directly contributed to securing the fulfilment of the obligation and was not punitive in character. It finds that the applicant’s detention indeed served the purpose of preventing him from arranging and taking part in a hooligan brawl. His separation from the two groups of hooligans by his custody and his inability to contact any of them made it impossible for him to commit bodily assaults and breaches of the peace or to incite others to do so on 10 April 2004. The Court further notes that the legal basis for the order of the applicant’s detention was a provision of the Hessian Public Security and Order Act, which governs the powers of the Hessian police in order to fulfil their duty to avert dangers to public security and order (see paragraphs 30 and 33 above). The police thus did not act under the provisions of the Criminal Code or the Code on Criminal Procedure for the purpose of prosecuting offences. Moreover, the Court notes that no criminal investigation proceedings were opened against the applicant in relation to his acts on 10 April 2004. His detention did not, therefore, have a punitive character. 98. The Court considers, thirdly, that the nature of the obligation whose fulfilment is sought – namely the duty not to arrange and take part in a hooligan brawl at the said time and place and not to commit bodily assaults and breaches of the peace in the course of that brawl – was itself compatible with the Convention. 99. Fourthly, for an obligation falling under the second limb of Article 5 § 1 (b), the basis for detention ceases to exist as soon as the relevant obligation has been fulfilled. In the present case, the applicant was under an obligation not to commit bodily assaults and breaches of the peace in the course of a brawl arranged by him between Bremen and Frankfurt am Main hooligans in the hours before, during or in the hours after the football match on 10 April 2004 in the city of Frankfurt or its vicinity. 100. The Court observes that in the case of a duty not to commit a specific offence at a certain time and place – as opposed to a duty to perform a specific act – it is difficult for an applicant to prove prior to the lapse of the time at which the offence was to be committed that he or she complied with that duty. The obligation at issue must be considered as having been “fulfilled”, for the purposes of Article 5 § 1 (b), at the latest when it ceased to exist by lapse of the time at which the offence at issue was to take place. The Court would not exclude that, depending on the circumstances of a case, a person could show prior to the moment the offence at issue was to take place that he or she was no longer willing to commit that offence – for instance by offering to leave and to stay away from the place of the planned offence and by supplying proof thereof. In such circumstances, such a person’s detention would then have to be terminated forthwith in order to comply with Article 5 § 1 (b). In the present case, however, there is nothing to suggest that during his time in custody the applicant had given any indication of his willingness to comply with his duty to keep the peace by not arranging and/or participating in a hooligan brawl. Consequently, in these circumstances, it must be concluded that his obligation was “fulfilled” for the purposes of Article 5 (1) (b) insofar as it ceased to exist once the football match had ended and other football hooligans had been dispersed so that a brawl in Frankfurt could no longer have been arranged. At that moment, he ought to have been released and so he was. 101. Finally, the Court has to determine whether a due balance has been struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty (see paragraph 73 above). It considers that the obligation on the applicant not to arrange and take part in a hooligan brawl during which, as a rule, bodily assaults and breaches of the peace would be committed on a large scale, posing a considerable threat to the security of uninvolved third persons, was an important obligation incumbent on him in the public interest. The Government stressed – and this was uncontested by the applicant – that the police was obliged, nowadays, to avert hooligan brawls both during the weekly football matches of the German Federal Football League and during football championships (see paragraph 54 above). The obligation not to hinder the peaceful running of such a sports event involving large numbers of spectators and to protect the public from dangers notably to their physical integrity was therefore a weighty duty in the circumstances of the case. 102. Moreover, the Court is satisfied that the applicant, aged 35 at the time of his arrest, could reasonably have been considered by the police to have been the leader of the Bremen group of hooligans and that he had shown himself to be unwilling to comply with his duty to keep the peace by not organising a brawl between rival hooligans. As for the duration of his detention of some four hours, the Court, referring to its findings above (see paragraph 81), considers that the applicant had not been detained for longer than was necessary in order to prevent him from taking further steps towards organising a hooligan brawl in or in the vicinity of Frankfurt am Main on 10 April 2004. The applicant’s detention at issue was, therefore, proportionate to the aim of securing the immediate fulfilment of his obligation at issue. 103. It follows that the applicant’s deprivation of liberty was justified under the second limb of Article 5 § 1 (b). (iii) Lawfulness of detention 104. The Court further considers that the applicant’s detention, based on section 32 § 1 no. 2 of the Hessian Public Security and Order Act, was lawful and effected in accordance with the procedure prescribed by domestic law. This was indeed not contested by the parties. (iv) Conclusion 105. Having regard to the foregoing, the Court concludes that, the applicant’s detention having complied with sub-paragraph (b) of Article 5 § 1, there has been no violation of Article 5 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 106. The applicant further complained of a violation of his right to a fair and public hearing within a reasonable time in connection with his unjustified and unlawful entry in the Bremen police database as a person prepared to use violence in the context of sports events. He relied on Article 6 of the Convention. 107. The Court notes that the applicant, as the Hessian Administrative Court of Appeal has already set out (see paragraph 24 above), failed to bring any court proceedings in respect of his registration in a database of the Bremen police against that competent authority. Consequently, this part of the application must be rejected for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention. | The Court held that there had been no violation of Article 5 § 1 (right to liberty and security) of the Convention, finding that the applicant’s police custody had been justified under that Article as detention “in order to secure the fulfilment of an obligation prescribed by law”. The Court considered in particular that his custody had served to fulfil the specific and concrete obligation on the applicant to refrain from arranging a brawl between opposing groups of hooligans at a football match. |
463 | Responsibility of a State for the consequences of a treaty which it had been involved in adopting | II. relevant law in gibraltar A. Gibraltar and the United Kingdom 8. Gibraltar is a dependent territory of the United Kingdom. It forms part of Her Majesty the Queen’s Dominions, but not part of the United Kingdom. The United Kingdom parliament has the ultimate authority to legislate for Gibraltar, but in practice exercises it rarely. 9. Executive authority in Gibraltar is vested in the Governor, who is the Queen’s representative. Pursuant to a dispatch of 23 May 1969, certain “defined domestic matters” are allocated to the locally elected Chief Minister and his Ministers; other matters (external affairs, defence and internal security) are not “defined” and the Governor thus retains responsibility for them. 10. The Chief Minister and the Government of Gibraltar are responsible to the Gibraltar electorate via general elections to the House of Assembly. The House of Assembly is the domestic legislature in Gibraltar. It has the right to make laws for Gibraltar on “defined domestic matters”, subject to, inter alia, a power in the Governor to refuse to assent to legislation. B. Gibraltar and the European Community 11. The Treaty Establishing the European Community (“the EC Treaty”) applies to Gibraltar by virtue of its Article 227(4), which provides that it applies to the European territories for whose external relations a member State is responsible. The United Kingdom acceded to the precursor to the EC Treaty, the Treaty Establishing the European Economic Community of 25 March 1957 (“the EEC Treaty”), by a Treaty of Accession of 22 January 1972. 12. Gibraltar is excluded from certain parts of the EC Treaty by virtue of the Treaty of Accession. In particular, Gibraltar does not form part of the customs territory of the Community, with the result that the provisions on free movement of goods do not apply; it is treated as a third country for the purposes of the common commercial policy; it is excluded from the common market in agriculture and trade in agricultural products and from the Community rules on value-added tax and other turnover taxes, and it makes no contribution to the Community budget. European Community (“EC”) legislation concerning, inter alia, such matters as free movement of persons, services and capital, health, the environment and consumer protection applies in Gibraltar. 13. Relevant EC legislation becomes part of Gibraltar law in the same way as in other parts of the Union: regulations are directly applicable, and directives and other legal acts of the EC which call for domestic legislation are transposed by domestic primary or secondary legislation. 14. Although Gibraltar is not part of the United Kingdom in domestic terms, by virtue of a declaration made by the United Kingdom government at the time of the entry into force of the British Nationality Act 1981, the term “nationals” and derivatives used in the EC Treaty are to be understood as referring, inter alia, to British citizens and to British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar. C. The European Community and the European Parliament 15. The powers of the European Community are divided amongst the institutions set up by the EC Treaty, including the European Parliament, the Council, the Commission (“the European Commission”) and the Court of Justice. 16. Before 1 November 1993, the date of the entry into force of the Maastricht Treaty on European Union of 7 February 1992 (“the Maastricht Treaty”), Article 137 of the EEC Treaty referred to the “advisory and supervisory powers” of the European Parliament. Since 1 November 1993, the words “advisory and supervisory powers” have been removed and the role of the European Parliament has been expressed by Article 137 to be to “exercise the powers conferred upon it by [the] Treaty”. The principal powers of the European Parliament under the EC Treaty may now be summarised as follows: Article 138b provides that the European Parliament shall “participate in the process leading up to the adoption of Community acts by exercising its powers under the procedures laid down in Articles 189b and 189c and by giving its assent or delivering advisory opinions”. Further, the second paragraph of Article 138b empowers the European Parliament to request the European Commission to submit any appropriate proposal on matters on which it considers that a Community act is required for the purpose of implementing the Treaty. The reference in the first paragraph of Article 138b to “assent” refers to a procedure whereby the EC Treaty (for example, in Articles 8a(2) and 130d) provides for adoption of provisions by the Council on a proposal from the European Commission and after obtaining the assent of the European Parliament. The procedure is called the “assent procedure”. Article 144 provides for a motion of censure by the European Parliament over the European Commission whereby if a motion is carried by a two-thirds majority, representing a majority of the members, the members of the European Commission are required to resign as a body. Article 158 provides that the European Parliament is to be consulted before the President of the European Commission is nominated, and the members of the European Commission, once nominated, are subject as a body to a vote of approval by the European Parliament. The first paragraph of Article 189 provides: “In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.” Article 189b provides: “1. Where reference is made in the Treaty to this Article for the adoption of an act, the following procedure [ [4] ] shall apply. 2. The Commission shall submit a proposal to the European Parliament and the Council. The Council, acting by a qualified majority after obtaining the opinion of the European Parliament, shall adopt a common position. The common position shall be communicated to the European Parliament. The Council shall inform the European Parliament fully of the reasons which led it to adopt its common position. The Commission shall inform the European Parliament fully of its position. If, within three months of such communication, the European Parliament: (a) approves the common position, the Council shall definitively adopt the act in question in accordance with that common position; (b) has not taken a decision, the Council shall adopt the act in question in accordance with its common position; (c) indicates, by an absolute majority of its component Members, that it intends to reject the common position, it shall immediately inform the Council. The Council may convene a meeting of the Conciliation Committee referred to in paragraph 4 to explain further its position. The European Parliament shall thereafter either confirm, by an absolute majority of its component Members, its rejection of the common position, in which event the proposed act shall be deemed not to have been adopted, or propose amendments in accordance with subparagraph (d) of this paragraph; (d) proposes amendments to the common position by an absolute majority of its component Members, the amended text shall be forwarded to the Council and to the Commission which shall deliver an opinion on those amendments. 3. If, within three months of the matter being referred to it, the Council, acting by a qualified majority, approves all the amendments of the European Parliament, it shall amend its common position accordingly and adopt the act in question; however, the Council shall act unanimously on the amendments on which the Commission has delivered a negative opinion. If the Council does not approve the act in question, the President of the Council, in agreement with the President of the European Parliament, shall forthwith convene a meeting of the Conciliation Committee. 4. The Conciliation Committee, which shall be composed of the members of the Council or their representatives and an equal number of representatives of the European Parliament, shall have the task of reaching agreement on a joint text, by a qualified majority of the members of the Council or their representatives and by a majority of the representatives of the European Parliament. The Commission shall take part in the Conciliation Committee’s proceedings and shall take all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council. 5. If, within six weeks of its being convened, the Conciliation Committee approves a joint text, the European Parliament, acting by an absolute majority of the votes cast, and the Council, acting by a qualified majority, shall have a period of six weeks from that approval in which to adopt the act in question in accordance with the joint text. If one of the two institutions fails to approve the proposed act, it shall be deemed not to have been adopted. 6. Where the Conciliation Committee does not approve a joint text, the proposed act shall be deemed not to have been adopted unless the Council, acting by a qualified majority within six weeks of expiry of the period granted to the Conciliation Committee, confirms the common position to which it agreed before the conciliation procedure was initiated, possibly with amendments proposed by the European Parliament. In this case, the act in question shall be finally adopted unless the European Parliament, within six weeks of the date of confirmation by the Council, rejects the text by an absolute majority of its component Members, in which case the proposed act shall be deemed not to have been adopted. 7. The periods of three months and six weeks referred to in this Article may be extended by a maximum of one month and two weeks respectively by common accord of the European Parliament and the Council. The period of three months referred to in paragraph 2 shall be automatically extended by two months where paragraph 2(c) applies. 8. The scope of the procedure under this Article may be widened, in accordance with the procedure provided for in Article N(2) of the Treaty on European Union, on the basis of a report to be submitted to the Council by the Commission by 1996 at the latest.” Article 189c provides: “Where reference is made in this Treaty to this Article for the adoption of an act, the following procedure [ [5] ] shall apply: (a) The Council, acting by a qualified majority on a proposal from the Commission and after obtaining the opinion of the European Parliament, shall adopt a common position. (b) The Council’s common position shall be communicated to the European Parliament. The Council and the Commission shall inform the European Parliament fully of the reasons which led the Council to adopt its common position and also of the Commission’s position. If, within three months of such communication, the European Parliament approves this common position or has not taken a decision within that period, the Council shall definitively adopt the act in question in accordance with the common position. (c) The European Parliament may, within the period of three months referred to in point (b), by an absolute majority of its component Members, propose amendments to the Council’s common position. The European Parliament may also, by the same majority, reject the Council's common position. The result of the proceedings shall be transmitted to the Council and the Commission. If the European Parliament has rejected the Council’s common position, unanimity shall be required for the Council to act on a second reading. (d) The Commission shall, within a period of one month, re-examine the proposal on the basis of which the Council adopted its common position, by taking into account the amendments proposed by the European Parliament. The Commission shall forward to the Council, at the same time as its re-examined proposal, the amendments of the European Parliament which it has not accepted, and shall express its opinion on them. The Council may adopt these amendments unanimously. (e) The Council, acting by a qualified majority, shall adopt the proposal as re-examined by the Commission. Unanimity shall be required for the Council to amend the proposal as re-examined by the Commission. (f) In the cases referred to in points (c), (d) and (e), the Council shall be required to act within a period of three months. If no decision is taken within this period, the Commission proposal shall be deemed not to have been adopted. (g) The periods referred to in points (b) and (f) may be extended by a maximum of one month by common accord between the Council and the European Parliament.” Article 203 makes provision for the budget of the Community. In particular, after the procedure for making modifications and amendments to the draft budget, it is open to the European Parliament to reject the draft budget and to ask for a new budget to be submitted (Article 203(8)). Article 206 provides for parliamentary involvement in the process of discharging the European Commission in respect of the implementation of the budget. In particular, the European Parliament may ask to hear the European Commission give evidence on the execution of expenditure, and the European Commission is required to submit information to the European Parliament if so requested. Further, the European Commission is required to take all appropriate steps to act on the observations of the European Parliament in this connection. D. Elections and the European Parliament 17. Article 138(3) of the EEC Treaty provided, in 1976, that the European Parliament was to draw up proposals for elections. The Council was required to “lay down the appropriate provisions, which it [was to] recommend to Member States for adoption in accordance with their respective constitutional requirements”. Identical provision was made in the European Coal and Steel Community Treaty and the European Atomic Energy Community Treaty. 18. In accordance with Article 138(3), Council Decision 76/787 (“the Council Decision”), signed by the President of the Council of the European Communities and the then member States’ foreign ministers, laid down such provisions. The specific provisions were set out in an Act Concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage of 20 September 1976 (“the 1976 Act”), signed by the respective foreign ministers, which was attached to the Council Decision. Article 15 of the 1976 Act provides that “Annexes I to III shall form an integral part of this Act”. Annex II to the 1976 Act states that “The United Kingdom will apply the provisions of this Act only in respect of the United Kingdom”. E. The application of the Convention to Gibraltar 19. By a declaration dated 23 October 1953, the United Kingdom, pursuant to former Article 63 of the Convention, extended the Convention to Gibraltar. Protocol No. 1 applies to Gibraltar by virtue of a declaration made under Article 4 of Protocol No. 1 on 25 February 1988. PROCEEDINGS BEFORE THE COMMISSION 20. Ms Matthews applied to the Commission on 18 April 1994. She alleged a violation of Article 3 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention. 21. The Commission declared the application (no. 24833/94) admissible on 16 April 1996. In its report of 29 October 1997 (former Article 31 of the Convention), it expressed the opinion that there had been no violation of Article 3 of Protocol No. 1 (eleven votes to six) and that there had been no violation of Article 14 of the Convention (twelve votes to five). The full text of the Commission’s opinion and of the five separate opinions contained in the report is reproduced as an annex to this judgment [6]. FINAL SUBMISSIONS TO THE COURT 22. The Government asked the Court to find that there had been no violation of the Convention. 23. The applicant, for her part, asked the Court to find a breach of her rights under Article 3 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention. She also claimed an award of costs. THE LAW I. alleged violation of article 3 of Protocol no. 1 24. The applicant alleged a breach of Article 3 of Protocol No. 1, which provides: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” 25. The Government maintained that, for three main reasons, Article 3 of Protocol No. 1 was not applicable to the facts of the present case or, in the alternative, that there had been no violation of that provision. A. Whether the United Kingdom can be held responsible under the Convention for the lack of elections to the European Parliament in Gibraltar 26. According to the Government, the applicant’s real objection was to Council Decision 76/787 and to the 1976 Act concerning elections to the European Parliament (see paragraph 18 above). That Act, which had the status of a treaty, was adopted in the Community framework and could not be revoked or varied unilaterally by the United Kingdom. The Government underlined that the European Commission of Human Rights had refused on a number of occasions to subject measures falling within the Community legal order to scrutiny under the Convention. Whilst they accepted that there might be circumstances in which a Contracting Party might infringe its obligations under the Convention by entering into treaty obligations which were incompatible with the Convention, they considered that in the present case, which concerned texts adopted in the framework of the European Community, the position was not the same. Thus, acts adopted by the Community or consequent to its requirements could not be imputed to the member States, together or individually, particularly when those acts concerned elections to a constitutional organ of the Community itself. At the hearing, the Government suggested that to engage the responsibility of any State under the Convention, that State must have a power of effective control over the act complained of. In the case of the provisions relating to the elections to the European Parliament, the United Kingdom Government had no such control. 27. The applicant disagreed. For her, the Council Decision and 1976 Act constituted an international treaty, rather than an act of an institution whose decisions were not subject to Convention review. She thus considered that the Government remained responsible under the Convention for the effects of the Council Decision and 1976 Act. In the alternative – that is, if the Council Decision and 1976 Act were to be interpreted as involving a transfer of powers to the Community organs – the applicant argued, by reference to Commission case-law, that in the absence of any equivalent protection of her rights under Article 3 of Protocol No. 1, the Government in any event retained responsibility under the Convention. 28. The majority of the Commission took no stand on the point, although it was referred to in concurring and dissenting opinions. 29. Article 1 of the Convention requires the High Contracting Parties to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”. Article 1 makes no distinction as to the type of rule or measure concerned, and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention (see the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 17-18, § 29). 30. The Court notes that the parties do not dispute that Article 3 of Protocol No. 1 applies in Gibraltar. It recalls that the Convention was extended to the territory of Gibraltar by the United Kingdom’s declaration of 23 October 1953 (see paragraph 19 above), and Protocol No. 1 has been applicable in Gibraltar since 25 February 1988. There is therefore clearly territorial “jurisdiction” within the meaning of Article 1 of the Convention. 31. The Court must nevertheless consider whether, notwithstanding the nature of the elections to the European Parliament as an organ of the EC, the United Kingdom can be held responsible under Article 1 of the Convention for the absence of elections to the European Parliament in Gibraltar, that is, whether the United Kingdom is required to “secure” elections to the European Parliament notwithstanding the Community character of those elections. 32. The Court observes that acts of the EC as such cannot be challenged before the Court because the EC is not a Contracting Party. The Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be “secured”. Member States’ responsibility therefore continues even after such a transfer. 33. In the present case, the alleged violation of the Convention flows from an annex to the 1976 Act, entered into by the United Kingdom, together with the extension to the European Parliament’s competences brought about by the Maastricht Treaty. The Council Decision and the 1976 Act (see paragraph 18 above), and the Maastricht Treaty, with its changes to the EEC Treaty, all constituted international instruments which were freely entered into by the United Kingdom. Indeed, the 1976 Act cannot be challenged before the European Court of Justice for the very reason that it is not a “normal” act of the Community, but is a treaty within the Community legal order. The Maastricht Treaty, too, is not an act of the Community, but a treaty by which a revision of the EEC Treaty was brought about. The United Kingdom, together with all the other parties to the Maastricht Treaty, is responsible ratione materiae under Article 1 of the Convention and, in particular, under Article 3 of Protocol No. 1, for the consequences of that Treaty. 34. In determining to what extent the United Kingdom is responsible for “securing” the rights in Article 3 of Protocol No. 1 in respect of elections to the European Parliament in Gibraltar, the Court recalls that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (see, for example, the above-mentioned United Communist Party of Turkey and Others judgment, pp. 18-19, § 33). It is uncontested that legislation emanating from the legislative process of the European Community affects the population of Gibraltar in the same way as legislation which enters the domestic legal order exclusively via the House of Assembly. To this extent, there is no difference between European and domestic legislation, and no reason why the United Kingdom should not be required to “secure” the rights in Article 3 of Protocol No. 1 in respect of European legislation, in the same way as those rights are required to be “secured” in respect of purely domestic legislation. In particular, the suggestion that the United Kingdom may not have effective control over the state of affairs complained of cannot affect the position, as the United Kingdom’s responsibility derives from its having entered into treaty commitments subsequent to the applicability of Article 3 of Protocol No. 1 to Gibraltar, namely the Maastricht Treaty taken together with its obligations under the Council Decision and the 1976 Act. Further, the Court notes that on acceding to the EC Treaty, the United Kingdom chose, by virtue of Article 227(4) of the Treaty, to have substantial areas of EC legislation applied to Gibraltar (see paragraphs 11 to 14 above). 35. It follows that the United Kingdom is responsible under Article 1 of the Convention for securing the rights guaranteed by Article 3 of Protocol No. 1 in Gibraltar regardless of whether the elections were purely domestic or European. B. Whether Article 3 of Protocol No. 1 is applicable to an organ such as the European Parliament 36. The Government claimed that the undertaking in Article 3 of Protocol No. 1 was necessarily limited to matters falling within the power of the parties to the Convention, that is, sovereign States. They submitted that the “legislature” in Gibraltar was the House of Assembly, and that it was to that body that Article 3 of Protocol No. 1 applied in the context of Gibraltar. For the Government, there was no basis upon which the Convention could place obligations on Contracting Parties in relation to elections for the parliament of a distinct, supranational organisation, and they contended that this was particularly so when the member States of the European Community had limited their own sovereignty in respect of it and when both the European Parliament itself and its basic electoral procedures were provided for under its own legal system, rather than the legal systems of its member States. 37. The applicant referred to previous decisions of the European Commission of Human Rights in which complaints concerning the European Parliament were dealt with on the merits, so that the Commission in effect assumed that Article 3 of Protocol No. 1 applied to elections to the European Parliament (see, for example, Lindsay v. the United Kingdom, application no. 8364/78, decision of 8 March 1979, Decisions and Reports (DR) 15, p. 247, and Tête v. France, application no. 11123/84, decision of 9 December 1987, DR 54, p. 52). She agreed with the dissenting members of the Commission who did not accept that because the European Parliament did not exist when Protocol No. 1 was drafted, it necessarily fell outside the ambit of Article 3 of that Protocol. 38. The majority of the Commission based its reasoning on this jurisdictional point. It considered that “to hold Article 3 of Protocol No. 1 to be applicable to supranational representative organs would be to extend the scope of Article 3 beyond what was intended by the drafters of the Convention and beyond the object and purpose of the provision. ...[T]he role of Article 3 is to ensure that elections take place at regular intervals to the national or local legislative assembly, that is, in the case of Gibraltar, to the House of Assembly” (see paragraph 63 of the Commission’s report). 39. That the Convention is a living instrument which must be interpreted in the light of present-day conditions is firmly rooted in the Court’s case-law (see, inter alia, the Loizidou v. Turkey judgment of 23 March 1995 ( preliminary objections ), Series A no. 310, pp. 26-27, § 71, with further reference). The mere fact that a body was not envisaged by the drafters of the Convention cannot prevent that body from falling within the scope of the Convention. To the extent that Contracting States organise common constitutional or parliamentary structures by international treaties, the Court must take these mutually agreed structural changes into account in interpreting the Convention and its Protocols. The question remains whether an organ such as the European Parliament nevertheless falls outside the ambit of Article 3 of Protocol No. 1. 40. The Court recalls that the word “legislature” in Article 3 of Protocol No. 1 does not necessarily mean the national parliament: the word has to be interpreted in the light of the constitutional structure of the State in question. In the case of Mathieu-Mohin and Clerfayt v. Belgium, the 1980 constitutional reform had vested in the Flemish Council sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 23, § 53; see also the Commission’s decisions on the application of Article 3 of Protocol No. 1 to regional parliaments in Austria (application no. 7008/75, decision of 12 July 1976, DR 6, p. 120) and in Germany (application no. 27311/95, decision of 11 September 1995, DR 82-A, p. 158)). 41. According to the case-law of the European Court of Justice, it is an inherent aspect of EC law that such law sits alongside, and indeed has precedence over, domestic law (see, for example, Costa v. ENEL, 6/64 [1964] ECR 585, and Amministrazione delle Finanze dello Stato v. Simmenthal SpA, 106/77 [1978] ECR 629). In this regard, Gibraltar is in the same position as other parts of the European Union. 42. The Court reiterates that Article 3 of Protocol No. 1 enshrines a characteristic of an effective political democracy (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 22, § 47, and the above-mentioned United Communist Party of Turkey and Others judgment, pp. 21-22, § 45). In the present case, there has been no submission that there exist alternative means of providing for electoral representation of the population of Gibraltar in the European Parliament, and the Court finds no indication of any. 43. The Court thus considers that to accept the Government’s contention that the sphere of activities of the European Parliament falls outside the scope of Article 3 of Protocol No. 1 would risk undermining one of the fundamental tools by which “effective political democracy” can be maintained. 44. It follows that no reason has been made out which could justify excluding the European Parliament from the ambit of the elections referred to in Article 3 of Protocol No. 1 on the ground that it is a supranational, rather than a purely domestic, representative organ. C. Whether the European Parliament, at the relevant time, had the characteristics of a “legislature” in Gibraltar 45. The Government contended that the European Parliament continued to lack both of the most fundamental attributes of a legislature: the power to initiate legislation and the power to adopt it. They were of the opinion that the only change to the powers and functions of the European Parliament since the Commission last considered the issue in the above-mentioned Tête decision (see paragraph 37 above) – the procedure under Article 189b of the EC Treaty – offered less than even a power of co-decision with the Council, and in any event applied only to a tiny proportion of the Community’s legislative output. 46. The applicant took as her starting-point in this respect that the European Commission of Human Rights had found that the entry into force of the Single European Act in 1986 did not furnish the European Parliament with the necessary powers and functions for it to be considered as a “legislature” (see the above-mentioned Tête decision). She contended that the Maastricht Treaty increased those powers to such an extent that the European Parliament was now transformed from a mere advisory and supervisory organ to a body which assumed, or assumed at least in part, the powers and functions of legislative bodies within the meaning of Article 3 of Protocol No. 1. The High Contracting Parties had undertaken to hold free elections at reasonable intervals by secret ballot, under conditions which would ensure the free expression of the opinion of the people in the choice of the legislature. She described the powers of the European Parliament not solely in terms of the new matters added by the Maastricht Treaty, but also by reference to its pre-existing powers, in particular those which were added by the Single European Act in 1986. 47. The Commission did not examine this point, as it found Article 3 not to be applicable to supranational representative organs. 48. In determining whether the European Parliament falls to be considered as the “legislature”, or part of it, in Gibraltar for the purposes of Article 3 of Protocol No. 1, the Court must bear in mind the sui generis nature of the European Community, which does not follow in every respect the pattern common in many States of a more or less strict division of powers between the executive and the legislature. Rather, the legislative process in the EC involves the participation of the European Parliament, the Council and the European Commission. 49. The Court must ensure that “effective political democracy” is properly served in the territories to which the Convention applies, and in this context, it must have regard not solely to the strictly legislative powers which a body has, but also to that body’s role in the overall legislative process. 50. Since the Maastricht Treaty, the European Parliament’s powers are no longer expressed to be “advisory and supervisory”. The removal of these words must be taken as an indication that the European Parliament has moved away from being a purely consultative body, and has moved towards being a body with a decisive role to play in the legislative process of the European Community. The amendment to Article 137 of the EC Treaty cannot, however, be taken as any more than an indication as to the intentions of the drafters of the Maastricht Treaty. Only on examination of the European Parliament’s actual powers in the context of the European Community legislative process as a whole can the Court determine whether the European Parliament acts as the “legislature”, or part of it, in Gibraltar. 51. The European Parliament’s role in the Community legislative process depends on the issues concerned (see paragraphs 15-16 above). Where a regulation or directive is adopted by means of the consultation procedure (for example under Articles 99 or 100 of the EC Treaty) the European Parliament may, depending on the specific provision, have to be consulted. In such cases, the European Parliament’s role is limited. Where the EC Treaty requires the procedure set out in Article 189c to be used, the European Parliament’s position on a matter can be overruled by a unanimous Council. Where the EC Treaty requires the Article 189b procedure to be followed, however, it is not open to the Council to pass measures against the will of the European Parliament. Finally, where the so-called “assent procedure” is used (as referred to in the first paragraph of Article 138b of the EC Treaty), in relation to matters such as the accession of new member States and the conclusion of certain types of international agreements, the consent of the European Parliament is needed before a measure can be passed. In addition to this involvement in the passage of legislation, the European Parliament also has functions in relation to the appointment and removal of the European Commission. Thus, it has a power of censure over the European Commission, which can ultimately lead to the European Commission having to resign as a body (Article 144); its consent is necessary for the appointment of the European Commission (Article 158); its consent is necessary before the budget can be adopted (Article 203); and it gives a discharge to the European Commission in the implementation of the budget, and here has supervisory powers over the European Commission (Article 206). Further, whilst the European Parliament has no formal right to initiate legislation, it has the right to request the European Commission to submit proposals on matters on which it considers that a Community act is required (Article 138b). 52. As to the context in which the European Parliament operates, the Court is of the view that the European Parliament represents the principal form of democratic, political accountability in the Community system. The Court considers that whatever its limitations, the European Parliament, which derives democratic legitimation from the direct elections by universal suffrage, must be seen as that part of the European Community structure which best reflects concerns as to “effective political democracy”. 53. Even when due allowance is made for the fact that Gibraltar is excluded from certain areas of Community activity (see paragraph 12 above), there remain significant areas where Community activity has a direct impact in Gibraltar. Further, as the applicant points out, measures taken under Article 189b of the EC Treaty and which affect Gibraltar relate to important matters such as road safety, unfair contract terms and air pollution by emissions from motor vehicles and to all measures in relation to the completion of the internal market. 54. The Court thus finds that the European Parliament is sufficiently involved in the specific legislative processes leading to the passage of legislation under Articles 189b and 189c of the EC Treaty, and is sufficiently involved in the general democratic supervision of the activities of the European Community, to constitute part of the “legislature” of Gibraltar for the purposes of Article 3 of Protocol No. 1. D. The application of Article 56 of the Convention to the case 55. Article 56 §§ 1 and 3 of the Convention provide as follows: “1. Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the … Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible. ... 3. The provisions of [the] Convention shall be applied in such territories with due regard, however, to local requirements.” 56. The Government noted, without relying formally on the point, that two members of the Commission had emphasised the constitutional position of Gibraltar as a dependent territory in the context of Article 56 (formerly Article 63) of the Convention. 57. The applicant was of the view that the “local requirements” referred to in Article 56 § 3 of the Convention could not be interpreted so as to restrict the application of Article 3 of Protocol No. 1 in the case. 58. The Commission, which found Article 3 not to be applicable on other grounds, did not consider this point. Two members of the Commission, in separate concurring opinions, both found that Article 56 of the Convention had a role to play in the case. 59. The Court recalls that in the Tyrer v. the United Kingdom judgment (25 April 1978, Series A no. 26, pp. 18-19, § 38) it found that before the former Article 63 § 3 could apply, there would have to be “positive and conclusive proof of a requirement”. Local requirements, if they refer to the specific legal status of a territory, must be of a compelling nature if they are to justify the application of Article 56 of the Convention. In the present case, the Government do not contend that the status of Gibraltar is such as to give rise to “local requirements” which could limit the application of the Convention, and the Court finds no indication that there are any such requirements. E. Whether the absence of elections to the European Parliament in Gibraltar in 1994 was compatible with Article 3 of Protocol No. 1 60. The Government submitted that, even if Article 3 of Protocol No. 1 could be said to apply to the European Parliament, the absence of elections in Gibraltar in 1994 did not give rise to a violation of that provision but instead fell within the State’s margin of appreciation. They pointed out that in the 1994 elections the United Kingdom had used a single-member constituency, “first-past-the-post” system. It would have distorted the electoral process to constitute Gibraltar as a separate constituency, since its population of approximately 30,000 was less than 5% of the average population per European Parliament seat in the United Kingdom. The alternative of redrawing constituency boundaries so as to include Gibraltar within a new or existing constituency was no more feasible, as Gibraltar did not form part of the United Kingdom and had no strong historical or other link with any particular United Kingdom constituency. 61. The applicant submitted that she had been completely deprived of the right to vote in the 1994 elections. She stated that the protection of fundamental rights could not depend on whether or not there were attractive alternatives to the current system. 62. The Commission, since it did not find Article 3 of Protocol No. 1 to be applicable, did not examine whether or not the absence of elections in Gibraltar was compatible with that provision. 63. The Court recalls that the rights set out in Article 3 of Protocol No. 1 are not absolute, but may be subject to limitations. The Contracting States enjoy a wide margin of appreciation in imposing conditions on the right to vote, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with. It has to satisfy itself that the conditions do not curtail the right to vote to such an extent as to impair its very essence and deprive it of effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, such conditions must not thwart “the free expression of the people in the choice of the legislature” (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 23, § 52). 64. The Court makes it clear at the outset that the choice of electoral system by which the free expression of the opinion of the people in the choice of the legislature is ensured – whether it be based on proportional representation, the “first-past-the-post” system or some other arrangement – is a matter in which the State enjoys a wide margin of appreciation. However, in the present case the applicant, as a resident of Gibraltar, was completely denied any opportunity to express her opinion in the choice of the members of the European Parliament. The position is not analogous to that of persons who are unable to take part in elections because they live outside the jurisdiction, as such individuals have weakened the link between themselves and the jurisdiction. In the present case, as the Court has found (see paragraph 34 above), the legislation which emanates from the European Community forms part of the legislation in Gibraltar, and the applicant is directly affected by it. 65. In the circumstances of the present case, the very essence of the applicant’s right to vote, as guaranteed by Article 3 of Protocol No. 1, was denied. It follows that there has been a violation of that provision. ii. alleged violation of article 14 of the convention taken in conjunction with article 3 of protocol no. 1 66. The applicant in addition alleged that, as a resident of Gibraltar, she had been the victim of discrimination contrary to Article 14 of the Convention, which provides: “ The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status .” 67. The Government did not address separately this complaint. 68. In view of its above conclusion that there has been a violation of Article 3 of Protocol No. 1 taken alone, the Court does not consider it necessary to consider the complaint under Article 14 of the Convention. III. application of article 41 of the Convention 69. Under Article 41 of the Convention, “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Costs and expenses 70. The applicant did not claim any damages under Article 41, but she did claim costs and expenses before the Court totalling 760,000 French francs (FRF) and 10,955 pounds sterling (GBP), made up as to FRF 760,000 of her representative’s fees and expenses (750 hours at FRF 1,000 per hour) and FRF 10,000 disbursements, and as to GBP 10,955 of fees and expenses incurred in instructing solicitors in Gibraltar. She also claimed FRF 6,976 and GBP 1,151.50 in respect of travel expenses. The Government considered that the total number of hours claimed by the applicant’s main representative should be reduced by about half, and that the Gibraltar advisers’ claims should not have amounted to more than one-third of the sums actually claimed. They also challenged some of the travel expenses. 71. In the light of the criteria established in its case-law, the Court holds on an equitable basis that the applicant should be awarded the sum of GBP 45,000 from which should be deducted FRF 18,510 already paid by way of legal aid for fees and travel and subsistence expenses before the Court. B. Default interest 72. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum. | The Court reiterated that the European Convention on Human Rights did not exclude the transfer of competences to international organisations provided that Convention rights continued to be “secured”. Member States’ responsibility therefore continued even after such a transfer. The Court further noted that when it had been decided to elect representatives to the European Parliament by direct universal suffrage, it had been specified that the United Kingdom would apply the relevant provisions within the United Kingdom only (hence not in Gibraltar). With the extension of the powers of the European Parliament under the Maastricht Treaty, the United Kingdom should have amended its legislation to ensure that the right to free elections (Article 3 of Protocol No. 1 to the Convention) – which applied to the “choice of the legislature” – was guaranteed in Gibraltar. The United Kingdom had freely entered into the Maastricht Treaty. Together with the other Parties to that Treaty, it was therefore responsible ratione materiae under the Convention for its consequences. The Court held that there had been a breach of Article 3 (right to free elections) of Protocol No. 1 to the Convention. |
1,069 | Right to a fair trial (Article 6 of the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Assessment and imposition of tax surcharges 14. Section 177 ( 1 ) of the Value-Added Tax Act ( arvonlisäverolaki, mervärdesskattelagen; Law no. 1501/1993) provides that if a person liable to pay taxes has failed to pay the taxes or clearly paid an insufficient amount of taxes or failed to give required information to the tax authorities, the Regional Tax Office ( verovirasto, skatteverket ) must assess the amount of unpaid taxes. 15. Section 179 provides that a tax assessment may be conducted where a person has failed to make the required declarations or has given false information to the tax authorities. The taxpayer may be ordered to pay unpaid taxes or taxes that have been wrongly refunded to the person. 16. Section 182 provides, inter alia, that a maximum tax surcharge of 20 % of the tax liability may be imposed if the person has without a justifiable reason failed to give a tax declaration or other document in due time or given essentially incomplete information. The tax surcharge may amount at most to twice the amount of the tax liability, if the person has without any justifiable reason failed to fulfil his or her duties fully or partially even after being expressly asked to provide information. 17. In, for example, the Finnish judicial reference book, Encyclopædia Iuridica Fennica, a tax surcharge is defined as an administrative sanction of a punitive nature imposed on the taxpayer for conduct contrary to tax law. 18. Under Finnish practice, the imposition of a tax surcharge does not prevent the bringing of criminal charges for the same conduct. B. Oral hearings 19. Section 38 ( 1 ) of the Administrative Judicial Procedure Act ( hallintolainkäyttölaki, förvaltningsprocesslagen; Law no. 586/1996) provides that an oral hearing must be held if requested by a private party. An oral hearing may however be dispensed with if a party ’ s request is ruled inadmissible or immediately dismissed, or if an oral hearing would be clearly unnecessary owing to the nature of the case or other circumstances. 20. The explanatory part of the Government Bill ( no. 217/1995) for the enactment of the Administrative Judicial Procedure Act considers the right to an oral hearing as provided by Article 6 and the possibility in administrative matters to dispense with the hearing when it would be clearly unnecessary, as stated in section 38 ( 1 ) of the said Act. There it is noted that an oral hearing contributes to a focused and immediate procedure but, since it does not always bring any added value, it must be ensured that the flexibility and cost effectiveness of the administrative procedure is not undermined. An oral hearing is to be held when it is necessary for the clarification of the issues and the hearing can be considered beneficial for the case as a whole. 21. During the period 2000 to 2006, the Supreme Administrative Court did not hold any oral hearings in tax matters. As to the eight administrative courts, appellants requested an oral hearing in a total of 603 cases. The courts held an oral hearing in 129 cases. There is no information as to how many of these taxation cases concerned the imposition of a tax surcharge. According to the Government ’ s written submission of 12 July 2006, the administrative courts had thus far in 2006 held a total of 20 oral hearings in tax matters. As regards the Helsinki Administrative Court in particular, in 2005 it examined a total of 10,669 cases of which 4,232 were tax matters. Out of the last- mentioned group of cases, 505 concerned VAT. During that year the Administrative Court held a total of 153 oral hearings of which three concerned VAT. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicant complained that the tax - surcharge proceedings were unfair as the courts did not hold an oral hearing in his case. The Court has examined this complaint under Article 6 of the Convention, the relevant part of which provides : “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ... ” A. The parties ’ submissions 1. The applicant 23. The applicant contested the Government ’ s submissions as giving misleading, erroneous interpretations of domestic and Convention law. According to the applicant his case required, both under the domestic legislation and under Article 6 of the Convention, a mandatory oral hearing owing to his need for legal protection and the fact that the credibility of witness statements played a significant role in the determination of the case. According to the applicant the matter did not concern only 308.80 euros (EUR), but altogether a financial liability of EUR 7,374.92. The applicant maintained that the lack of an oral hearing de facto placed the burden of proof on him. He also emphasised the importance of the threat of the punishment and the impact on his business from having to pay unjustified taxes with no legal basis. 24. In his oral submissions, the applicant pointed out that he had not “opted for” the liability to pay VAT. On the contrary, as the annual turnover exceeded the threshold laid down by the Value- Added Tax Act, it was compulsory to file a VAT return. 2. The Government 25. The Government noted the fundamental nature of the obligation on individuals and companies to pay tax. Tax matters formed part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the tax authorities remaining predominant. An extension of the ambit of Article 6 § 1 under its criminal head to cover taxes could have far-reaching consequences for the State ’ s ability to collect taxes. 26. The Government noted that, under the Finnish legal system, tax surcharges belonged to administrative law. They were not imposed under criminal- law provisions but in accordance with various tax laws. Moreover, they were determined by the tax authorities and the administrative courts, and they were in all respects treated differently from court-imposed sanctions. The surcharge in issue in this case was targeted at a given group with a particular status, namely citizens under the obligation to pay VAT and registered as subject to VAT. It was not therefore imposed under a general rule. The main purpose of the surcharges was to protect the fiscal interests of the State and to exert pressure on taxpayers to comply with their legal obligations, to sanction breaches of those obligations, and to prevent re-offending. However this aspect was not decisive. They emphasised that the penalty imposed did not reach the substantial level identified in Bendenoun v. France ( 24 February 1994, Series A no. 284 ). The tax surcharges could not be converted into a prison sentence and the amount of the tax surcharge in the present case was low, 10%, which amounted to the equivalent of EUR 308.80, with an overall maximum surcharge possible of 20 %. 27. Assuming Article 6 was applicable, the Government maintained that the obligation under Article 6 § 1 to hold a public hearing was not an absolute one. A hearing might not be necessary owing to the exceptional circumstances of the case, for example when it raised no questions of fact or law which could not be adequately resolved on the basis of the case file and parties ’ written observations. Besides the publicity requirement there were other considerations, including the right to a trial within a reasonable time and the related need for an expeditious handling of the courts ’ caseload, which had to be taken into account in determining the necessity of public hearings in proceedings subsequent to the trial at first-instance level. 28. The Government maintained that in the present case the purpose of the applicant ’ s request for an oral hearing was to challenge the reliability and accuracy of the report on the tax inspection by cross-examining the tax inspector and the expert. They noted that the Administrative Court took the measure of inviting written observations from the tax inspector and after that a statement from an expert chosen by the applicant. An oral hearing was manifestly unnecessary as the information provided by the applicant himself formed a sufficient factual basis for the consideration of the case. The issue at hand was rather technical, being based on the report of the tax inspector. Such a dispute could be better dealt with in writing than in oral argument. There was nothing to indicate that questions of fact or law would have emerged which could not have been adequately resolved on the basis of the case file and the written observations of the applicant, the tax inspector and the expert. No additional information could have been gathered by hearing, as required by the applicant, the tax inspector or the expert in person. Furthermore, the applicant was given the possibility of putting forward any views in writing which in his opinion would be decisive for the outcome of the proceedings. He also had the possibility to comment on all the information provided by the tax authorities throughout the proceedings. Further, he was able to appeal to the County Administrative Court and Supreme Administrative Court, both of which had full jurisdiction on questions of fact and law and could quash the decisions of the tax authorities. The Government concluded that there were circumstances which justified dispensing with a hearing in the applicant ’ s case. B. The Court ’ s assessment 1. Applicability of Article 6 29. The present case concerns proceedings in which the applicant was found, following errors in his tax returns, liable to pay VAT and an additional 10% surcharge. The assessment of tax and the imposition of surcharges fall outside the scope of Article 6 under its civil head ( see Ferrazzini v. Italy [GC], no. 44759/98, § 29, ECHR 2001- VII ). The issue therefore arises in this case whether the proceedings were “ criminal ” within the autonomous meaning of Article 6 and thus attracted the guarantees of Article 6 under that head. 30. The Court ’ s established case-law sets out three criteria to be considered in the assessment of the applicability of the criminal aspect. These criteria, sometimes referred to as the “ Engel criteria”, were most recently affirmed by the Grand Chamber in Ezeh and Connors v. the United Kingdom ( [GC] nos. 39665/98 and 40086/98, § 82, ECHR 2003 ‑ X ). “... [I]t is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. The very nature of the offence is a factor of greater import. ... However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. ... ” 31. The second and third criteria are alternative and not necessarily cumulative. It is enough that the offence in question is by its nature to be regarded as criminal or that the offence renders the person liable to a penalty which by its nature and degree of severity belongs in the general criminal sphere ( see Ezeh and Connors, cited above, § 86). The relative lack of seriousness of the penalty cannot divest an offence of its inherently criminal character ( see Öztürk v. Germany, 21 February 1984, § 54, Series A no. 73; see also Lutz v. Germany, 25 August 1987, § 55, Series A no. 123 ). This does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge ( see Ezeh and Connors, cited above, § 86, citing, inter alia, Bendenoun, cited above, § 47 ). 32. The Court has considered whether its case-law supports a different approach in fiscal or tax cases. It observes that in Bendenoun, which concerned the imposition of tax penalties or a surcharge for evasion of tax (VAT and corporation tax in respect of the applicant ’ s company and his personal income tax liability), the Court did not refer expressly to Engel and Others v. the Netherlands (8 June 1976, Series A no. 22) and listed four elements as being relevant to the applicability of Article 6 in that case: that the law setting out the penalties covered all citizens in their capacity as taxpayers; that the surcharge was not intended as pecuniary compensation for damage but essentially as a punishment to deter re-offending; that it was imposed under a general rule whose purpose is both deterrent and punitive; and that the surcharge was substantial (422,534 French francs (FRF) in respect of the applicant and FRF 570,398 in respect of his company, corresponding to EUR 64,415 and EUR 86,957 respectively ). These factors may be regarded however in context as relevant in assessing the application of the second and third Engel criteria to the facts of the case, there being no indication that the Court was intending to deviate from previous case-law or to establish separate principles in the tax sphere. It must further be emphasised that the Court in Bendenoun did not consider any of the four elements as being in themselves decisive and took a cumulative approach in finding Article 6 applicable under its criminal head. 33. In Janosevic v. Sweden ( no. 34619/97, ECHR 2002 ‑ VII ), the Court made no reference to Bendenoun or its particular approach but proceeded squarely on the basis of the Engel criteria identified above. While reference was made to the severity of the actual and potential penalty (a surcharge amounting to 161,261 Swedish kronor (approximately EUR 17,284 ) was involved and there was no upper limit on the surcharges in this case), this was as a separate and additional ground for the criminal characterisation of the offence which had already been established on examination of the nature of the offence ( see Janosevic, §§ 68-69; see also Västberga Taxi Aktiebolag and Vulic v. Sweden, no. 36985/97, 23 July 2002, decided on a similar basis at the same time ). 34. In the subsequent case of Morel v. France ( ( dec. ), no. 54559/00, ECHR 2003- IX ), however, Article 6 was found not to apply in respect of a 10% tax surcharge (FRF 4,450, corresponding to EUR 678), which was “not particularly high” and was therefore “a long way from the ‘ very substantial ’ level” needed for it to be classified as criminal. The decision, which applied the Bendenoun rather than the Engel criteria, attaches paramount importance to the severity of the penalty to the detriment of the other Bendenoun criteria, in particular that concerning the nature of the offence (and the purpose of the penalty) and makes no reference to the recent Janosevic case. As such, it seems more in keeping with the Commission ’ s approach in Bendenoun v. France ( no. 12547/86, Commission ’ s report of 10 December 1992, unreported ), in which the Commission based the applicability of Article 6 chiefly on the degree of severity of the penalty, unlike the Court in the same case, which weighed up all the aspects of the case in a strictly cumulative approach. Morel is an exception among the reported cases in that it relies on the lack of severity of the penalty as removing the case from the ambit of Article 6, although the other criteria (general rule, not compensatory in nature, deterrent and punitive purpose) had clearly been fulfilled. 35. The Grand Chamber agrees with the approach adopted in Janosevic, which gives a detailed analysis of the issues in a judgment on the merits after the benefit of hearing argument from the parties ( compare Morel which was a decision on inadmissibility). No established or authoritative basis has therefore emerged in the case-law for holding that the minor nature of the penalty, in taxation proceedings or otherwise, may be decisive in removing an offence, otherwise criminal by nature, from the scope of Article 6. 36. Furthermore, the Court is not persuaded that the nature of tax- surcharge proceedings is such that they fall, or should fall, outside the protection of Article 6. Arguments to that effect have also failed in the context of prison disciplinary and minor traffic offences (see, among others, Ezeh and Connors and Öztürk, both cited above). While there is no doubt as to the importance of tax to the effective functioning of the State, the Court is not convinced that removing procedural safeguards in the imposition of punitive penalties in that sphere is necessary to maintain the efficacy of the fiscal system or indeed can be regarded as consonant with the spirit and purpose of the Convention. In this case the Court will therefore apply the Engel criteria as identified above. 37. Turning to the first criterion, it is apparent that the tax surcharges in this case were not classified as criminal but as part of the fiscal regime. This is however not decisive. 38. The second criterion, the nature of the offence, is the more important. The Court observes that, as in the Janosevic and Bendenoun cases, it may be said that the tax surcharges were imposed by general legal provisions applying to taxpayers generally. It is not persuaded by the Government ’ s argument that VAT applies to only a limited group with a special status: as in the previously-mentioned cases, the applicant was liable in his capacity as a taxpayer. The fact that he opted for VAT registration for business purposes does not detract from this position. Further, as acknowledged by the Government, the tax surcharges were not intended as pecuniary compensation for damage but as a punishment to deter re-offending. It may therefore be concluded that the surcharges were imposed by a rule whose purpose was deterrent and punitive. The Court considers that this establishes the criminal nature of the offence. The minor nature of the penalty renders this case different from Janosevic and Bendenoun as regards the third Engel criterion but does not remove the matter from the scope of Article 6. Hence, Article 6 applies under its criminal head notwithstanding the minor nature of the tax surcharge. 39. The Court must therefore consider whether the tax- surcharge proceedings complied with the requirements of Article 6, having due regard to the facts of the individual case, including any relevant features flowing from the taxation context. 2. Compliance with Article 6 40. An oral, and public, hearing constitutes a fundamental principle enshrined in Article 6 § 1. This principle is particularly important in the criminal context, where generally there must be at first instance a tribunal which fully meets the requirements of Article 6 ( see Findlay v. the United Kingdom, 25 February 1997, § 79, Reports of Judgments and Decisions 1997 - I ), and where an applicant has an entitlement to have his case “ heard ”, with the opportunity, inter alia, to give evidence in his own defence, hear the evidence against him, and examine and cross-examine the witnesses. 41. That said, the obligation to hold a hearing is not absolute ( see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A ). There may be proceedings in which an oral hearing may not be required: for example where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the parties ’ submissions and other written materials (see, for example, Döry v. Sweden, no. 28394/95, § 37, 12 November 2002, and Pursiheimo v. Finland ( dec. ), no. 57795/00, 25 November 20 03; compare Lundevall v. Sweden, no. 3862 9 /97, § 39, 12 November 2002, and Salomonsson v. Sweden, no. 38 978 /97, § 39, 12 November 2002; and see also Göç v. Turkey [GC], no. 36 590 / 97, § 51, ECHR 2002-V, where the applicant should have been heard on elements of personal suffering relevant to levels of compensation ). 42. The Court has further acknowledged that the national authorities may have regard to the demands of efficiency and economy and found, for example, that the systematic holding of hearings could be an obstacle to the particular diligence required in social security cases and ultimately prevent compliance with the reasonable - time requirement of Article 6 § 1 ( see Schuler- Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263 and the cases cited therein). Although the earlier cases emphasised that a hearing must be held before a court of first and only instance unless there were exceptional circumstances that justified dispensing with one (see, for instance, Håkansson and Sturesson, cited above, § 64; Fredin v. Sweden (no. 2), 23 February 1994, §§ 21-22, Series A no. 283-A; and Allan Jacobsson v. Sweden (no. 2), 19 February 1998, § 46, Reports 1998-I ), the Court has clarified that the character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations. It does not mean that refusing to hold an oral hearing may be justified only in rare cases (see Miller v. Sweden, no. 55853/00, § 29, 8 February 2005). The overarching principle of fairness embodied in Article 6 is, as always, the key consideration (see, mutatis mutandis, Pélissier and Sassi v. France [GC], no. 25444/94, § 52, ECHR 1999- II, and Sejdovic v. Italy [GC], no. 56581/00, § 90, ECHR 2006- II ). 43. While it may be noted that the above-mentioned cases in which an oral hearing was not considered necessary concerned proceedings falling under the civil head of Article 6 § 1 and that the requirements of a fair hearing are the most strict in the sphere of criminal law, the Court would not exclude that in the criminal sphere the nature of the issues to be dealt with before the tribunal or court may not require an oral hearing. Notwithstanding the consideration that a certain gravity attaches to criminal proceedings, which are concerned with the allocation of criminal responsibility and the imposition of a punitive and deterrent sanction, it is self-evident that there are criminal cases which do not carry any significant degree of stigma. There are clearly “criminal charges” of differing weight. What is more, the autonomous interpretation adopted by the Convention institutions of the notion of a “criminal charge” by applying the Engel criteria have underpinned a gradual broadening of the criminal head to cases not strictly belonging to the traditional categories of the criminal law, for example administrative penalties ( Öztürk, cited above ), prison disciplinary proceedings ( Campbell and Fell v. the United Kingdom, 28 June 1984, Series A no. 80), customs law ( Salabiaku v. France, 7 October 1988, Series A no. 141-A), competition law ( Société Stenuit v. France, 27 February 1992, Series A no. 232-A), and penalties imposed by a court with jurisdiction in financial matters ( Guisset v. France, no. 33933/96, ECHR 2000-IX). Tax surcharges differ from the hard core of criminal law; consequently, the criminal-head guarantees will not necessarily apply with their full stringency (see Bendenoun and Janosevic, § 46 and § 81 respectively, where it was found compatible with Article 6 § 1 for criminal penalties to be imposed, in the first instance, by an administrative or non-judicial body, and, a contrario, Findlay, cited above). 44. It must also be said that the fact that proceedings are of considerable personal significance to the applicant, as in certain social insurance or benefit cases, is not decisive for the necessity of a hearing (see Pirinen v. Finland ( dec. ), no. 32447/02, 16 May 2006 ). 45. While the Court has found that Article 6 § 1 of the Convention extends to tax- surcharge proceedings, that provision does not apply to a dispute over the tax itself ( see Ferrazzini, cited above). It is, however, not uncommon for procedures to combine the varying elements and it may not be possible to separate those parts of the proceedings which determine a “ criminal charge ” from those parts which do not. The Court must accordingly consider the proceedings in issue to the extent to which they determined a “criminal charge” against the applicant, although that consideration will necessarily involve the “pure” tax assessment to a certain extent (see Georgiou v. the United Kingdom ( dec. ), no. 40042/98, 16 May 2000, and Sträg Datatjänster AB v. Sweden ( dec. ), no. 50664/99, 21 June 2005). 46. In the present case, the applicant ’ s purpose in requesting a hearing was to challenge the reliability and accuracy of the report on the tax inspection by cross-examining the tax inspector and obtaining supporting testimony from his own expert since, in his view, the tax inspector had misinterpreted the requirements laid down by the relevant legislation and given an inaccurate account of his financial state. His reasons for requesting a hearing therefore concerned in large part the validity of the tax assessment, which as such fell outside the scope of Article 6, although there was the additional question of whether the applicant ’ s book - keeping had been so deficient as to justify a surcharge. The Administrative Court, which took the measure of inviting written observations from the tax inspector and after that a statement from an expert chosen by the applicant, found in the circumstances that an oral hearing was manifestly unnecessary as the information provided by the applicant himself formed a sufficient factual basis for the consideration of the case. 47. The Court does not doubt that checking and ensuring that the taxpayer has given an accurate account of his or her affairs and that supporting documents have been properly produced may often be more efficiently dealt with in writing than in oral argument. Nor is it persuaded by the applicant that in this particular case any issues of credibility arose in the proceedings which required oral presentation of evidence or cross-examination of witnesses and it finds force in the Government ’ s argument that any issues of fact and law could be adequately addressed in, and decided on the basis of, written submissions. 48. The Court further observes that the applicant was not denied the possibility of requesting an oral hearing, although it was for the courts to decide whether a hearing was necessary (see, mutatis mutandis, Martinie v. France [GC], no. 58675/00, § 44, ECHR 2006-VI ). The Administrative Court gave such consideration with reasons. The Court also notes the minor sum of money at stake. Since the applicant was given ample opportunity to put forward his case in writing and to comment on the submissions of the tax authorities, the Court finds that the requirements of fairness were complied with and did not, in the particular circumstances of this case, necessitate an oral hearing. 49. There has, accordingly, been no violation of Article 6 § 1 of the Convention. | The Court found that, although the tax surcharges in the case were part of the fiscal regime, they had been imposed by a rule whose purpose was deterrent and punitive. The offence was therefore criminal, within the meaning of Article 6 (right to a fair trial) of the Convention and the Court held that Article 6 was applicable in the applicant’s case. Noting, however, that the applicant had been given ample opportunity to put forward his case in writing and to comment on the submissions of the tax authority, the Court found that the requirements of fairness had been complied with and did not, in the particular circumstances of the case, necessitate an oral hearing. It therefore held that there had been no violation of Article 6 § 1 of the Convention in the applicant’s case. |
602 | Recognition, organisation and leadership of churches and religious communities | II. RELEVANT DOMESTIC LAW AND PRACTICE 46. The relevant provisions of the 1991 Constitution read as follows: Article 13 “(1) Religions shall be free. (2) Religious institutions shall be separate from the State. (3) Eastern Orthodox Christianity shall be considered the traditional religion in the Republic of Bulgaria. (4) Religious institutions and communities, and religious beliefs shall not be used for political ends.” Article 37 “(1) The freedom of conscience, the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable. The State shall assist in the maintenance of tolerance and respect between the adherents of different denominations, and between believers and non-believers. (2) The freedom of conscience and religion shall not be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.” 47. The Constitutional Court's judgment no. 5 of 11 June 1992 provides a legally binding interpretation of the above provisions. It states, inter alia, that the State must not interfere with the internal organisation of religious communities and institutions, which must be regulated by their own statutes and rules. The State may interfere with the activity of a religious community or institution only in the cases contemplated in Articles 13 § 4 and 37 § 2 of the Constitution. An assessment as to whether there is such a case may also be undertaken at the time of registration of a religious community or institution. 48. The Religious Denominations Act came into force in 1949 and has been amended several times since then. The relevant provisions of the Act, as in force at the time of the events at issue, read as follows. Section 6 “(1) A religious denomination shall be considered recognised and shall become a legal person upon the approval of its statute by the Council of Ministers, or by a Deputy Prime Minister authorised for this purpose. (2) The Council of Ministers, or a Deputy Prime Minister authorised for this purpose, shall revoke the recognition, by a reasoned decision, if the activities of the religious denomination breach the law, public order or morals.” Section 9 “(1) Every religious denomination shall have a leadership accountable to the State. (2) The statute of the religious denomination shall establish its governing and representative bodies and the procedure for their election and appointment ...” Section 16 “(1) The national governing bodies of the religious denominations shall register with the Directorate of Religious Denominations of the Council of Ministers, and local governing bodies with the local municipalities, and they shall submit a list of the names of all members of these governing bodies.” 49. The Act also lays down rules regarding the activities of a religious denomination, imposes requirements as regards its clergy and gives the Directorate of Religious Denominations certain supervisory functions. In its judgment no. 5 of 11 June 1992 the Constitutional Court, while agreeing that certain provisions of the Religious Denominations Act were clearly unconstitutional, found that it was not its task to repeal legal provisions adopted prior to the entry into force of the 1991 Constitution, the ordinary courts being competent to declare them inapplicable. 50. The applicants contended that as a consequence of the provisions of section 6 of the Act, and since there is no public register for recognised religious denominations, in practice a religious community can establish its existence as a legal entity only by producing a copy of a letter or a decision to that effect issued by the Directorate of Religious Denominations. The same applies to the leader of a religious denomination when he needs to provide accreditation. 51. Under Decree no. 125 of the Council of Ministers of 6 December 1990, as amended, the competence of the Directorate of Religious Denominations includes “contacts between the State and religions denominations”, assistance to central and local administrative authorities in solving problems which involve religious matters and assistance to religious organisations as regards education and publications. 52. There are no procedural provisions under Bulgarian law specifically applicable to the examination by the Council of Ministers, or by a deputy prime minister, of a petition for authorisation of a religious denomination. Section 3 of the Administrative Procedure Act ( Закон за административното производство ), which contains a general legal regime on the procedure for the issuing of and appeal against administrative decisions, provides that the Act is not applicable as regards decisions of the Council of Ministers. THE LAW I. THE gOVERNMENT'S PRELIMINARY OBJECTION 53. Before the Court the Government maintained that the application should be rejected for failure to exhaust domestic remedies, regard being had to the fact that the domestic judicial appeals had been submitted by the first applicant on behalf of the Chief Mufti's Office, and not in his individual capacity. The applicants stated that they had no standing to institute proceedings in their individual capacity. The only possibility was an appeal on behalf of the community. Furthermore, the appeals on behalf of the Chief Mufti's Office had proved to be ineffective. The applicants referred to their complaint under Article 13 of the Convention. 54. The Court reiterates that objections of the kind now made by the Government should be raised before the admissibility of the application is considered (see, among other authorities, the Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, p. 31, § 57; the Artico v. Italy judgment of 13 May 1980, Series A no. 37, pp. 13-14, § 27; and Brumărescu v. Romania [GC], no. 28342/95, §§ 52-53, ECHR 1999-VII). However, the Government's objection was first raised on 25 August 1998, after the Commission's decision declaring the application admissible (see paragraph 12 of the Commission's report of 26 October 1999). There is, therefore, estoppel. II. alleged violation of ARTICLE 9 OF THE CONVENTION 55. The applicants complained that the alleged forced replacement of the leadership of the Muslim religious community in Bulgaria in 1995 and the ensuing events up to October 1997 had given rise to a violation of their rights under Article 9 of the Convention. Article 9 reads as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” A. Applicability of Article 9 1. Arguments before the Court (a) The applicants 56. The applicants maintained that the right to manifest one's religion in community with others meant that the community should be allowed to organise itself according to its own rules. In their view any interference in the internal life of the organisation was a matter of concern not only to the organisation but also to every person who belonged to the religious community and, in particular, to those directly involved in the religious or organisational leadership. The applicants stated that for a religious community the organisational structure was not simply a form of their existence, but had a substantive meaning. The identity of the leaders of the community was crucial, history abounding with examples of religious leaders converting believers or founding new religions. No less important for the individual believer was the way in which the organisation managed its places of worship and its property. The applicants were thus of the opinion that the alleged forced removal of the leadership of their religious community concerned their individual rights protected by Article 9 of the Convention, the more so given the first applicant's position of Chief Mufti and the second applicant's involvement in the life of the community. (b) The Government 57. The Government maintained that in the Convention organs' practice an application submitted in terms of Article 9 together with other provisions of the Convention would normally be examined under the other provisions relied on. They therefore concentrated in their memorial on Article 11 of the Convention. In their view not every act motivated by religious belief could constitute a manifestation of religion, within the meaning of Article 9. 58. The Government further submitted that in Bulgaria freedom of religion was guaranteed by the Constitution. Religious institutions being independent, the State had a duty to maintain a climate of tolerance and mutual respect between them without interfering in their internal organisational life. Thus, the Muslim religion was officially registered under the Religious Denominations Act. Muslim believers attended more than 1,000 mosques in the country. They had several religious schools and a newspaper, and maintained international contacts freely. Against that background the Government asserted that the facts relied on by the applicants had no bearing on their right to practise their religion, individually or collectively, in private or in public, to observe religious holidays, or to teach in schools. (c) The Commission 59. The Commission considered that the organisation of a religious community was an important part of religious life and that participation therein is a manifestation of one's religion. The applicants' complaints therefore fell within the ambit of Article 9 of the Convention. 2. The Court's assessment 60. The Court recalls that freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Serif v. Greece, no. 38178/97, § 49, ECHR 1999-IX, and the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, pp. 17-18, §§ 31 and 33). While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one's religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of one's religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief (see the Kalaç v. Turkey judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1209, § 27). 61. In the present case the parties differ on the question whether or not the events under consideration, which all relate to the organisation and leadership of the Muslim community in Bulgaria, concern the right of the individual applicants to freedom to manifest their religion and, consequently, whether or not Article 9 of the Convention applies. The applicants maintained that their religious liberties were at stake, whereas the Government analysed the complaints mainly from the angle of Article 11 of the Convention. 62. The Court recalls that religious communities traditionally and universally exist in the form of organised structures. They abide by rules which are often seen by followers as being of a divine origin. Religious ceremonies have their meaning and sacred value for the believers if they have been conducted by ministers empowered for that purpose in compliance with these rules. The personality of the religious ministers is undoubtedly of importance to every member of the community. Participation in the life of the community is thus a manifestation of one's religion, protected by Article 9 of the Convention. Where the organisation of the religious community is at issue, Article 9 of the Convention must be interpreted in the light of Article 11, which safeguards associative life against unjustified State interference. Seen in this perspective, the believers' right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual's freedom of religion would become vulnerable. 63. There is no doubt, in the present case, that the applicants are active members of the religious community. The first applicant was an elected Chief Mufti of the Bulgarian Muslims. The Court need not establish whether the second applicant, who used to work as an Islamic teacher, was also employed as a secretary to the Chief Mufti's Office, it being undisputed that Mr Chaush is a Muslim believer who actively participated in religious life at the relevant time. 64. It follows that the events complained of concerned both applicants' right to freedom of religion, as enshrined in Article 9 of the Convention. That provision is therefore applicable. 65. Further, the Court does not consider that the case is better dealt with solely under Article 11 of the Convention, as suggested by the Government. Such an approach would take the applicants' complaints out of their context and disregard their substance. The Court finds, therefore, that the applicants' complaints fall to be examined under Article 9 of the Convention. In so far as they touch upon the organisation of the religious community, the Court reiterates that Article 9 must be interpreted in the light of the protection afforded by Article 11 of the Convention. B. Compliance with Article 9 1. Arguments before the Court (a) The applicants 66. The applicants contended that the State authorities had interfered twice with the organisational life of the Muslim community. Firstly, in February 1995, they had replaced the legitimate leadership of the community led by the first applicant and then, in the following years, they had refused recognition of the re-elected leadership of the first applicant. In the applicants' view the measures undertaken by the State had profound consequences and amounted to replacement of the whole organisational structure of the Muslim community and a complete destruction of normal community life. All income was frozen, offices were seized by force, control over mosques was transferred, and any use of the communities' documents and property by the leadership of the first applicant was made impossible. Mr Hasan was thus compelled to continue his activities as head of the second largest religious community in Bulgaria “from the street, with zero financial resources”. Moreover, following the registration in February 1995 by the Directorate of Religious Denominations of Mr Gendzhev's leadership, no court, government body or indeed no person would recognise Mr Hasan as a legitimate representative of the Muslim believers. 67. The applicants further maintained that State interference with the internal affairs of the religious community had not been based on clear legal rules. They considered that the law in Bulgaria, in matters concerning religious communities, did not provide clarity and guarantees against abuse of administrative discretion. In their view the relations between the State and religious communities in Bulgaria were governed not by law, but by politics. Indeed, the replacement of the leadership of the Muslim religious community had curiously coincided with the change of government in Bulgaria. The relevant law, which had remained unchanged since the events complained of, provided for a discretionary power of the government to change religious leaderships at will. In the absence of a clear procedure in this respect or a public register of the by-laws and the representation of religious denominations, the system of ad hoc letters, issued by the Directorate of Religious Denominations to confirm the representation of the community to interested third parties and even to courts, created vast opportunities for arbitrary exercise of powers. In the applicant's view the authorities had failed in their duty to enact an adequate legal framework in this respect. 68. The applicants further claimed that Decree R-12 was in breach of the relevant law as it sanctioned a leadership which had not been elected in accordance with the statute and the by-laws of the Muslim community. These rules provided for a procedure for the election of leaders at a national conference convened by decision of the Supreme Holy Council, the Chief Mufti, and the Control Commission. Having recognised these rules in 1992, the authorities should not have registered leaders elected in breach thereof. Furthermore, in the applicants' view the replacement of the leadership had been achieved through arbitrary decrees which gave no reasons and had been issued without the parties concerned even being informed. The refusal of the Council of Ministers to comply with two judgments of the Supreme Court had been another arbitrary interference with the internal life of the community. The prosecuting authorities' refusal to intervene and remedy what the applicants saw as a blatant criminal act, namely the forcible eviction of the first applicant and the staff from the building of the Chief Mufti's Office on 27 February 1995 had also been a clear breach of domestic law. 69. The applicants further asserted that the interference with their rights under Article 9 of the Convention had no legitimate aim. It could not be argued seriously that the government's purpose was to ensure clarity as to the representation of the Muslim religious community. Its actions at the material time had replaced one leadership of the community with another. (b) The Government 70. The Government submitted that there had not been any interference with the applicants' rights under Article 9 of the Convention. The acts of the Directorate of Religious Denominations were of a declarative nature. They did not give rise to rights and obligations and consequently were not capable of affecting the legal rights of others. According to the Court's case-law a registration requirement in religious matters was not as such incompatible with the Convention. 71. In the Government's view nothing prevented the applicants from freely participating in the organisation of the Muslim community during the period of time under consideration. There was no evidence that the applicants could not hold meetings or could not be elected to the leadership of the Muslim community. Indeed, on 6 March 1995 they had freely organised a new national conference at which the first applicant had been re-elected Chief Mufti. The fact that there was another national conference, that of 2 November 1994, which elected other leaders, could not be imputed to the State. It had been an expression of the free exercise of the right to freedom of association. Therefore, in the Government's view, it was not the State that had replaced the first applicant as Chief Mufti, but the independent will of the Muslim believers. In fact, Mr Hasan did not meet the age and qualification requirements for the position of Chief Mufti, as provided for in the statute of the Muslim religion in Bulgaria. 72. The Government also submitted that the State had continued to pay subsidies to the Muslim community. The question of who managed these funds had been decided freely by the community. The Government further rejected as unsubstantiated and ill-founded the first applicant's allegation that he could not address the faithful through the media on the occasion of religious holidays, the media being free and independent from the State. In the Government's view all complaints concerning the alleged indirect effects of the registration of another leadership were ill-founded. 73. In the Government's opinion the applicants were pursuing their own personal career by falsely presenting before the Court the events complained of as involving human rights issues. If their logic was followed, every leader of a religious community who had lost the confidence of the believers could lodge an application. That would create a dangerous precedent. The Government urged the Court to distance itself from such essentially political disputes. They reiterated that the Parliamentary Assembly of the Council of Europe had noted the progress made in Bulgaria in respect of religious freedoms and informed the Court that a new law on religious denominations was being drafted. (c) The Commission 74. The Commission found unanimously that there had been an unlawful State interference with the internal organisation of the Muslim community and the applicants' right to freedom of religion. 2. The Court's assessment (a) Whether there has been an interference 75. The Court must examine whether there has been State interference with the internal organisation of the Muslim community and, consequently, with the applicants' right to freedom of religion. 76. The Government's position was entirely based on the assertion that the impugned acts of the Directorate of Religious Denominations could not be regarded as an interference with the internal organisation of the community as they had been of a purely declaratory nature and had constituted nothing more than an administrative registration. The applicants alleged that these acts had had serious legal and practical consequences and had been aimed directly at removing the legitimate leadership of the Muslim community and replacing it by leaders politically associated with the government of the day. 77. The Court does not deem it necessary to decide in abstracto whether acts of formal registration of religious communities and changes in their leadership constitute an interference with the rights protected by Article 9 of the Convention. 78. Nevertheless, the Court considers, like the Commission, that facts demonstrating a failure by the authorities to remain neutral in the exercise of their powers in this domain must lead to the conclusion that the State interfered with the believers' freedom to manifest their religion within the meaning of Article 9 of the Convention. It recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate. State action favouring one leader of a divided religious community or undertaken with the purpose of forcing the community to come together under a single leadership against its own wishes would likewise constitute an interference with freedom of religion. In democratic societies the State does not need to take measures to ensure that religious communities are brought under a unified leadership (see Serif, cited above, § 52). 79. In the present case the Court notes that by virtue of Decree R-12 and the decision of the Directorate of Religious Denominations of 23 February 1995 the executive branch of government in Bulgaria proclaimed changes in the leadership and statute of the Muslim religious community. No reasons were given for this decision. There was no explanation why preference was to be given to the leaders elected at the national conference of 2 November 1994, which was organised by Mr Gendzhev's followers, and not to the first applicant, who had the support of another part of the community, as evidenced by the results of the national conference held on 6 March 1995. The Court further observes that in Bulgaria the legitimacy and representation powers of the leadership of a religious denomination are certified by the Directorate of Religious Denominations. The first applicant was thus deprived of his representation powers in law and in practice by virtue of the impugned decisions of February 1995. He was refused assistance by the prosecuting authorities against the forced eviction from the offices of the Chief Mufti precisely on the ground that Decree R-12 proclaimed another person as the Chief Mufti. He was apparently not able to retain control over at least part of the property belonging to the community, although Mr Hasan undoubtedly had the support of a significant proportion of its members. The impugned decisions thus clearly had the effect of putting an end to the first applicant's functions as Chief Mufti, removing the hitherto recognised leadership of the religious community and disallowing its statute and by-laws. The resulting situation remained unchanged throughout 1996 and until October 1997 as the authorities repeatedly refused to give effect to the decisions of the national conference organised by the first applicant on 6 March 1995. 80. It is true that in its judgments of 14 October 1996 and 13 March 1997 the Supreme Court implicitly refused to accept that the registration of a new leadership of the divided religious community had the effect of removing the previously recognised leadership of the rival faction. It therefore found that the Council of Ministers was under an obligation to examine the first applicant's request for registration of a new statute. However, those judgments did not have any practical effect, the Council of Ministers having refused to comply with them. 81. The Government's argument that nothing prevented the first applicant and those supporting him from organising meetings is not an answer to the applicants' grievances. It cannot be seriously maintained that any State action short of restricting the freedom of assembly could not amount to an interference with the rights protected by Article 9 of the Convention even though it adversely affected the internal life of the religious community. 82. The Court therefore finds, like the Commission, that Decree R-12, the decision of the Directorate of Religious Denominations of 23 February 1995, and the subsequent refusal of the Council of Ministers to recognise the existence of the organisation led by Mr Hasan were more than acts of routine registration or of correcting past irregularities. Their effect was to favour one faction of the Muslim community, granting it the status of the single official leadership, to the complete exclusion of the hitherto recognised leadership. The acts of the authorities operated, in law and in practice, to deprive the excluded leadership of any possibility of continuing to represent at least part of the Muslim community and of managing its affairs according to the will of that part of the community. There was therefore an interference with the internal organisation of the Muslim religious community and with the applicants' right to freedom of religion as protected by Article 9 of the Convention. 83. Such an interference entails a violation of that provision unless it is prescribed by law and necessary in a democratic society in pursuance of a legitimate aim (see Cha'are Shalom Ve Tsedek v. France [GC], no. 27417/95, §§ 75 and 84, ECHR 2000-VII). (b) Whether the interference was justified 84. The Court reiterates its settled case-law according to which the expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be both adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct (see the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 31, § 49; the Larissis and Others v. Greece judgment of 24 February 1998, Reports 1998-I, p. 378, § 40; Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999-VIII; and Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V). For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see Rotaru, cited above, § 55). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Hashman and Harrup, cited above, § 31, and the Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990, Series A no. 173, p. 26, § 68). 85. The Court notes that in the present case the relevant law does not provide for any substantive criteria on the basis of which the Council of Ministers and the Directorate of Religious Denominations register religious denominations and changes of their leadership in a situation of internal divisions and conflicting claims for legitimacy. Moreover, there are no procedural safeguards, such as adversarial proceedings before an independent body, against arbitrary exercise of the discretion left to the executive. Furthermore, Decree R-12 and the decision of the Directorate were never notified to those directly affected. These acts were not reasoned and were unclear to the extent that they did not even mention the first applicant, although they were intended to, and indeed did, remove him from his position as Chief Mufti. The Court has already found that these acts and the subsequent refusal of the Council of Ministers to recognise the leadership of Mr Hasan had the effect of arbitrarily favouring one faction of the divided religious community. It is noteworthy in this context that the replacement of the community's leadership in 1995, as well as in 1992 and 1997, occurred shortly after a change of government. 86. The Court finds, therefore, that the interference with the internal organisation of the Muslim community and the applicants' freedom of religion was not “prescribed by law” in that it was arbitrary and was based on legal provisions which allowed an unfettered discretion to the executive and did not meet the required standards of clarity and foreseeability. 87. The Court further agrees with the Commission that the repeated refusal of the Council of Ministers to comply with the judgments of the Supreme Court of 1996 and 1997 was a clearly unlawful act of particular gravity. The rule of law, one of the fundamental principles of a democratic society, is inherent in all Articles of the Convention and entails a duty on the part of the State and any public authority to comply with judicial orders or decisions against it (see the Hornsby v. Greece judgment of 19 March 1997, Reports 1997-II, pp. 510-11, §§ 40-41, and Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II). 88. In view of these findings the Court deems it unnecessary to continue the examination of the applicants' complaints in respect of the “legitimate aim” and “necessary in a democratic society” requirements. Such an examination can only be undertaken if the aim of the interference is clearly defined in domestic law. 89. There has, therefore, been a violation of Article 9 of the Convention. III. alleged violation of ARTICLE 11 OF THE CONVENTION 90. The applicants complained that the State interference with the internal organisation of the Muslim religious community also violated their rights under Article 11 of the Convention. The Government denied that the Muslim community was an “association” and maintained that in any event there had not been any State interference with rights protected by that Article. The Commission considered that it was not necessary to examine the applicants' complaints under Article 11 of the Convention separately. 91. The Court, like the Commission, considers that no separate issue arises under Article 11 of the Convention. It has already dealt with the complaint concerning State interference with the internal organisation of the Muslim religious community under Article 9 of the Convention, interpreted in the light of Article 11 (see paragraphs 62 and 65 above). IV. alleged violation of ARTICLE 13 OF THE CONVENTION 92. The applicants complained that they did not have an effective remedy against the interference with their right to freedom of religion. They relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 1. Arguments before the Court 93. The applicants submitted, inter alia, that the procedure before the Supreme Court, which ended with a judgment of 27 July 1995, was not an effective remedy. Although the Supreme Court could have granted appropriate relief by quashing Decree R-12, it had chosen not to deal with the applicants' arguments on the merits. This had been the consequence of what the applicants described as “the doctrine of full discretion”. In the applicants' submission the Bulgarian Supreme Court had repeatedly adhered to the position that in numerous areas the executive enjoyed full discretion which was not subject to judicial review. 94. The Government replied that the applicants had not instituted any proceedings in their capacity as individuals. In these circumstances they could not claim in abstracto that the law did not guarantee effective remedies. In the Government's view the applicants could have requested the institution of criminal proceedings under Articles 164 and 165 of the Criminal Code, which concern hate speech and impeding the free manifestation of religion through force or duress. 95. The Commission considered that the applicants did not have an effective remedy and that there had been a violation of Article 13 of the Convention. 2. The Court's assessment 96. The Court recalls that Article 13 guarantees the availability at national level of a remedy in respect of grievances which can be regarded as “arguable” in terms of the Convention. Such a remedy must allow the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they discharge their obligations under Article 13. The remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Çakıcı v. Turkey [GC], no. 23657/94, § 112, ECHR 1999-IV). 97. In the present case the Court has found that the applicants' rights under Article 9 of the Convention were infringed. They therefore had an arguable claim within the meaning of the Court's case-law. 98. The Court further considers that the scope of the obligation under Article 13 varies depending on the nature of the Convention right relied on. Like the Commission, it takes the view that in the context of the present case Article 13 cannot be seen as requiring a possibility for every believer, such as the second applicant, to institute in his individual capacity formal proceedings challenging a decision concerning the registration of his religious community's leadership. Individual believers' interests in this respect can be safeguarded by their turning to their leaders and supporting any legal action which the latter may initiate. 99. The Court thus finds that in such a case the State's obligation under Article 13 may well be discharged by the provision of remedies which are only accessible to representatives of the religious community aggrieved by a State interference with its internal organisation. In the present case the first applicant, Mr Hasan, was the leader of the faction of the Muslim organisation which was replaced through the State decisions complained of. The Court will therefore examine whether effective remedies existed for the first applicant in his capacity as religious leader. 100. The Court observes that Mr Hasan, acting as Chief Mufti, attempted to obtain a remedy against the interference with the internal organisation of the religious community by challenging Decree R-12 before the Supreme Court. The Supreme Court did not question Mr Hasan's locus standi and accepted the case for examination. A representative of the religious community was thus provided access to a judicial remedy. However, the Supreme Court refused to study the substantive issues, considering that the Council of Ministers enjoyed full discretion whether or not to register the statute and leadership of a religious denomination, and only ruled on the formal question whether Decree R-12 was issued by the competent body. The appeal to the Supreme Court against Decree R-12 was not, therefore, an effective remedy. 101. The other two appeals to the Supreme Court, which were submitted by the first applicant against the refusal of the Council of Ministers to register the results of the national conference of 6 March 1995, were not effective remedies either. Although the Supreme Court upheld these appeals, the Council of Ministers refused to comply with its judgments. 102. The Government suggested that the applicants could have requested the institution of criminal proceedings against persons who might have impeded the exercise of their freedom of religion. The Court observes, however, that the first applicant did in fact turn to the prosecuting authorities for assistance, but to no avail (see paragraph 26 above). Furthermore, the Government have not indicated how criminal proceedings, if instituted, could have led to an examination of the substance of the applicants' complaints, which concern decisions issued by a Deputy Prime Minister and the Directorate of Religious Denominations and found by the Supreme Court, in its judgment of 27 July 1995, to have been formally lawful. It is unclear how such proceedings could have remedied the situation complained of. 103. The Government have not indicated any other remedy which could be used by the applicants or other representatives of the religious community. 104. The Court finds, therefore, that the leadership of the faction led by Mr Hasan were unable to mount an effective challenge to the unlawful State interference in the internal affairs of the religious community and to assert their right to organisational autonomy, as protected by Article 9 of the Convention. It follows that neither applicant had an effective remedy in respect of the violation of Article 9. There has, therefore, been a violation of Article 13 of the Convention. V. alleged violation of ARTICLE 6 OF THE CONVENTION 105. The applicants complained that they did not have access to a court for the determination of certain civil rights. In their view Decree R-12 was decisive for some of their civil rights. These were the first applicant's right, in his capacity of Chief Mufti, to manage the religious affairs of the community, to administer its funds and property, and his right to remuneration for his services as Chief Mufti, and the second applicant's right to continue his job of an Islamic teacher, from which he was allegedly de facto dismissed. The applicants asserted that the determination of their civil rights without them having been parties to any proceedings, and without the Supreme Court having examined in substance the challenge against Decree R-12, was contrary to Article 6 of the Convention. 106. The Government submitted that the misfortunes in the applicants' careers were not the consequence of the impugned decisions. The applicants had not been parties to the proceedings before the Supreme Court against Decree R-12. Furthermore, if the second applicant had had an employment contract, he could have challenged its termination before the courts. 107. The Commission considered that the applicants' complaints under Article 6 were unsubstantiated. 108. The Court notes that the applicants have not substantiated the legal basis and the content of their alleged civil rights. Furthermore, they have not shown that there existed any obstacles preventing them from bringing civil actions before the courts in respect of their alleged right to remuneration. The Court therefore finds that there has been no violation of Article 6 of the Convention. VI. alleged violation of ARTICLE 1 of protocol No. 1 109. The Court notes that the applicants did not reiterate their complaints made before the Commission under Article 1 of Protocol No. 1. In those circumstances the Court sees no reason to deal with them of its own motion. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 110. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 111. The first applicant claimed 9,240 new levs (BGN) in respect of lost salary for the period between his removal from the position of Chief Mufti in February 1995 and November 1997, when a Chief Mufti elected at a unification conference took office. He also claimed costs for maintaining his activities as Chief Mufti between February 1995 and November 1997 (rent for an office and publication of the Musulmanin newspaper) in the amount of 5,500 United States dollars (USD). The second applicant claimed BGN 6,060 in lost salary as secretary to the Chief Mufti's Office and editor of the Musulmanin newspaper for the period between February 1995 and November 1997. 112. The applicants supported their claims by copies of contracts for the rent of two flats, receipts concerning expenses for the publication of the Musulmanin newspaper and for the holding of local meetings of the religious community, and a declaration from a Mr Velev who certified that he knew the applicants, that the second applicant used to perform “secretarial functions” at the Chief Mufti's Office and used to be the editor of the Musulmanin newspaper, and that as far as he remembered the applicants' monthly salaries were the equivalent of BGN 280 for the first applicant and BGN 200 for the second applicant. The applicants stated that they were unable to present other documentary proof as all documents concerning their income had remained in the building of the Chief Mufti's Office from where they had been evicted by force on 27 February 1995. 113. The Government submitted that all claims were unsubstantiated and not supported by sufficient evidence. In particular, the claims in respect of lost salary were without any basis, the applicants not having presented a single payment slip. Furthermore, a number of documents submitted by the applicants were unclear and contained numerous contradictions. The contracts for the rent of two flats mentioned that the flats were to be used by the tenant not only as offices but also as residences. There was no proof that the tenants had actually moved in or had paid the rent. In one contract the figure “1995” had clearly been overwritten to read “1996”. The Government further pointed out that the applicants had used arbitrary methods of calculation. In particular, the first applicant claimed that as of February 1995 his salary was 10,000 “old” levs (BGL) and that this amount was the equivalent of BGN 280. However, this calculation had apparently been made on the basis of the exchange rate of the lev with another currency. In fact, in July 1999 BGL 1,000 (“old” levs ) became BGN 1 (“new” lev ). Thus, BGL 10,000 would be the equivalent of BGN 10. 114. As regards the expenses for the publication of the Musulmanin newspaper, the Government contended that there were contradictions between the initial submissions of the applicants where they had claimed expenses in respect of three issues of the newspaper, and their later submissions, where they mentioned two issues and then four issues. Furthermore, the trade name of the newspaper had been registered by a third person and nothing demonstrated that the applicants could claim expenses in respect of the publication of this newspaper. 115. In respect of the second applicant the Government submitted a copy of a letter dated 8 May 2000 from the Chief Mufti's Office which certified that Mr Chaush had not worked at the Chief Mufti's Office as claimed by him. He had occasionally taught at the Islamic Institute in Sofia. Furthermore, the Government drew attention to a contradiction between the claims of the second applicant and his declaration of means made on 31 January 2000 and submitted for the purposes of his legal aid request. In the latter document the second applicant had stated that he had variable income, during the school year only, at the average level of BGN 40 to 80 per month. 116. The Government finally asserted that in February 1995 the first applicant had ceased to be Chief Mufti and could not therefore claim sums in respect of expenses allegedly incurred in his activities as Chief Mufti. 117. The Court considers that Mr Chaush, the second applicant, has not established a direct causal link between the violation found in the present case and the loss of income or other pecuniary damage allegedly suffered by him. The present case did not concern the circumstances of the second applicant's alleged dismissal from his position of an Islamic teacher, but the interference with his right to freedom of religion resulting from the forced removal of the leadership of the religious community to which he adhered as an active member. His claim for pecuniary damage is therefore dismissed. 118. In respect of the first applicant, it appears that some of the amounts claimed by him, such as sums for rent of offices and publication of a newspaper, concern the Chief Mufti's Office, which initially submitted an application to the Commission but then withdrew from the proceedings (see paragraph 2 above). Such amounts notwithstanding, the Court considers that the first applicant personally must have suffered some pecuniary damage as a result of his unlawful removal from the position of Chief Mufti and the forced eviction from the building of the Chief Mufti's Office. His claim in this respect, however, is not supported by reliable documentary evidence. As regards the alleged loss of income he has only submitted a declaration by a person who allegedly knew the amount of his salary. The Court finds therefore that the claim for pecuniary damage cannot be granted (see Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 54, ECHR 1999-VIII). Nevertheless, the Court accepts that the first applicant's inability to furnish documentary proof may to a certain extent be due to the fact that he was evicted by force from his office in February 1995 and denied access to his documentation. It will therefore take these circumstances into account when deciding on the first applicant's claim for non-pecuniary damage. 2. Non-pecuniary damage 119. The first applicant claimed USD 50,000 and the second applicant USD 30,000 under this head. The applicants submitted that they had suffered considerable distress over a long period of time. The first applicant had been the head of the second largest religious community in the country. His duty and responsibility vis-à-vis the thousands of believers who had placed their trust in him as their representative had been to ensure the functioning of the legitimate leadership of the religious community. The fact that he could not succeed in this task on account of the unlawful interference of the State with the internal organisation of the Muslim religion caused him acute emotional suffering. This situation was aggravated by the complete disrespect of the authorities for the rule of law between February 1995 and October 1997 when the applicants made numerous attempts to obtain justice, but were simply ignored. Throughout this period of time they continued to work facing enormous difficulties. 120. The Government invited the Court to reject the applicants' claims and to accept that the finding of a violation would be sufficient just satisfaction. The Government stated that the applicants had not shown damage to their reputation or their health and could not therefore claim non-pecuniary damage. Their personal emotional reactions to the events complained of were of a purely subjective nature and could not serve as grounds for a quantified claim. In the Government's submission the amounts claimed were in any event excessive and did not find support in the Court's case-law or the practice of the Committee of Ministers. Furthermore, the applicants' claims were exorbitant in view of the standard of living in Bulgaria, where, for the period 1992-98, on average, the minimum monthly salary was the equivalent of about USD 30 and the monthly salary of a judge at regional level about USD 140. 121. The Court considers that the unlawful State interference with the organisation of the Muslim community has undoubtedly caused distress to the first applicant, who was removed from his position as head of the second largest religious community in Bulgaria. This situation was aggravated by the continuous disrespect for his rights, the lack of any clear legal foundation for the acts of the authorities and their failure to provide an effective remedy. The Court considers, however, that the claims are excessive, regard being had to its case-law (see Thlimmenos v. Greece [GC], no. 34369/97, § 70, ECHR 2000-IV; Ceylan v. Turkey [GC], no. 23556/94, § 50, ECHR 1999-IV; and the following judgments cited above: Kokkinakis, p. 23, § 59; Serif, § 61; and Larissis and Others, p. 384, § 74). Making its assessment on an equitable basis, the Court awards BGN 10,000 to the first applicant. As regards the second applicant the Court holds that the finding of violations of the Convention constitutes sufficient just satisfaction. B. Costs and expenses 122. The applicants claimed USD 3,150 for 105 hours of work (at the rate of USD 30 per hour) by their lawyer on the proceedings before the Commission and the Court, an additional USD 640 for 16 hours of legal work on the hearing before the Court and USD 2,685 for expenses related to the hearing in Strasbourg on 29 May 2000. The latter amount included USD 1,560 in air fares for the two applicants and their lawyer, USD 1,080 in subsistence expenses for three days (on the basis of USD 120 per day per person) and USD 55 paid for French visas. The amount claimed by the applicants is equivalent to about BGN 13,500. 123. The Government pointed out that part of the legal work concerned the initial complaints of the Chief Mufti's Office before the Commission. However, the Chief Mufti's Office withdrew its complaints. The Government further objected to the hourly rate applied by the applicant's lawyer, which was many times superior to the normal rate charged by lawyers in Bulgaria, and submitted that the “time sheet” presented by the lawyer was unreliable. Finally, the amounts claimed in respect of air fares and subsistence expenses were not supported by invoices. 124. The Court agrees with the Government that a certain reduction should be applied in view of the fact that part of the costs were incurred in relation to the complaints which were disjoined and struck out by the Commission on 17 September 1998 (see paragraph 2 above). The remainder of the claim does not appear excessive in the light of the Court's case-law (see the Lukanov v. Bulgaria judgment of 20 March 1997, Reports 1997-II, p. 546, § 56; the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998-VIII, p. 3305, §§ 176-78; Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II; and Velikova v. Bulgaria, no. 41488/98, § 104, ECHR 2000-VI). The Court accordingly awards the sum of BGN 10,000 in respect of costs and expenses, together with any value-added tax that may be chargeable, less 18,655.87 French francs received by the applicants by way of legal aid, to be converted into levs at the rate applicable on the date of settlement. C. Default interest 125. According to the information available to the Court, the statutory rate of interest applicable in Bulgaria at the date of adoption of the present judgment is 13.85% per annum. | The Court considered that facts demonstrating a failure by the authorities to remain neutral in the exercise of their powers in respect of administrative registration of religious communities must lead to the conclusion that the State had interfered with the believers’ freedom to manifest their religion within the meaning of Article 9 of the Convention. It found that State action favouring one leader of a divided religious community or undertaken with the purpose of forcing the community to come together under a single leadership against its own wishes would constitute an interference with freedom of religion. In democratic societies the State did not need to take measures to ensure that religious communities are brought under a unified leadership. In the applicants’ case, observing that the acts of the Bulgarian authorities had operated, in law and in practice, to deprive the excluded leadership of any possibility of continuing to represent at least part of the Muslim community and of managing its affairs according to the will of that part of the community, the Court found that there had been an interference with the internal organisation of the Muslim religious community and the applicants’ freedom of religion. Concluding that this interference had not been prescribed by law in that it had been arbitrary and had been based on legal provisions which allowed an unfettered discretion to the executive and had not met the required standards of clarity and foreseeability, the Court held that there had been a violation of Article 9 of the Convention. Further finding that the leadership of the faction led by the first applicant had been unable to mount an effective challenge to the unlawful State interference in the internal affairs of the religious community and to assert their right to organisational autonomy, the Court held that there had been a violation of Article 13 (right to an effective remedy) of the Convention. |
284 | (Suspected) terrorists | II. RELEVANT DOMESTIC LAW A. Pertinent Constitutional provisions 18. Article 38 § 1 of the Irish Constitution provides that no person shall be tried on any criminal charge save in due course of law. By Article 40, the State guarantees liberty for the exercise, subject to public order and morality, of the right of citizens to express freely their convictions and opinions. B. The Offences against the State Act 1939 19. The Offences against the State Act 1939 is described in its long (explanatory) title as an Act to make provision for actions and conduct calculated to undermine public order and the authority of the State and, for that purpose, to provide for the punishment of persons guilty of offences against the State, and to establish Special Criminal Courts. 20. Section 21 of the 1939 Act makes it an offence to be a member of an unlawful organisation as defined in the Act. 21. Section 30 deals with the arrest and detention of suspected persons and provides that a member of the police can arrest and detain a person whom he suspects of having committed an offence under the 1939 Act or an offence scheduled under Part V of the 1939 Act (the scheduled offences are mainly offences under the firearms and explosive substances' legislation). This power of arrest is a permanent power so that it is not dependent on a section 35 proclamation (see the following paragraph). 22. Section 35 of the 1939 Act provides that Part V of that Act (which establishes the Special Criminal Courts and contains section 52) is to come into force by means of a proclamation by the government made when the government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, and when the government therefore makes and publishes a proclamation to that effect. The proclamation was made in 1972 and is still in force. Accordingly, section 52 of the 1939 Act has been in force since 1972 to date. 23. By section 36 of the 1939 Act the government may declare that a particular class or kind of offence is a scheduled offence for the purpose of the 1939 Act and such offences are to be tried by the Special Criminal Courts established under section 38 of the 1939 Act. 24. Section 52 of the 1939 Act reads as follows: “1. Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the [police] may demand of such person, at any time while he is so detained, a full account of such person's movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of this Act or any scheduled offence. 2. If any person, of whom any such account or information as is mentioned in the foregoing sub-section of this section is demanded under that sub-section by a member of the [police], fails or refuses to give to such member such account or any such information or gives to such member any account or information which is false or misleading, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.” 25. Under the terms of the Good Friday Peace Agreement of 10 April 1998, the government committed to initiating a wide ranging review of, inter alia, the 1939 Act with a view to reform and dispensing with those elements of the 1939 Act which would no longer be required. The Minister for Justice, Equality and Law Reform has, with government approval, established a committee to examine all aspects of the Offences against the State Acts and to report to the Minister with recommendations for reform. The committee has already commenced its work. C. Relevant case-law 26. In the McGowan case cited above, the accused had been arrested under section 30 of the 1939 Act and had made certain statements to the police. The defence argued that because of the basis of his arrest (section 30), the existence of section 52 of the 1939 Act and even though no section 52 requests had actually been made, the accused was bound under penalty to give an account of his movements. Accordingly, the statements which had been made by him were involuntary and not therefore admissible. The court did not find this argument persuasive since no section 52 requests had in fact been made. It went on to point out that, even if section 52 had been relied on by the police, the defence submission was not well-founded because of previous Irish case-law which had held that statements obtained in accordance with Irish law, even a law which made it a criminal offence to refuse to answer, were not inadmissible in any legal proceedings. 27. The Garda Siochana (police) Handbook contains relevant legislation and commentaries and is published by the Incorporated Law Society of Ireland in association with the Garda Siochana. The commentary on section 52 of the 1939 Act in the sixth edition (1991) provides as follows: “The fact that the accused is bound under threat of penalty to answer questions lawfully put under section 52 does not render the resultant answers or statements inadmissible in evidence.” The judicial authority for that proposition was noted in the handbook as being found in the McGowan case cited above and the earlier Irish case-law approved in the McGowan case. 28. In the case of National Irish Bank Ltd ( In the matter of National Irish Bank Ltd and the Companies Act 1990, [1999] 1 Irish Law Reports Monthly 343) the Supreme Court found that a confession of a bank official obtained by inspectors as a result of the exercise by them of their powers under section 10 of the Companies Act 1990 would not, in general, be admissible at a subsequent criminal trial of that official unless, in any particular case, the trial judge was satisfied that the confession was voluntary. The Supreme Court considered that compelling a person to confess and then convicting that person on the basis of the compelled confession would be contrary to Article 38 of the Constitution. That court also found that any other evidence obtained as a result of information provided under section 52 of the 1939 Act would be admitted in evidence in a subsequent trial if the trial judge considered, in all the circumstances, that it would be just and fair to admit it. THE LAW i. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 2 OF THE CONVENTION 29. The applicants complained that section 52 of the 1939 Act violated their rights to silence and against self-incrimination guaranteed by Article 6 § 1 of the Convention and inverted the presumption of innocence guaranteed by Article 6 § 2. The relevant parts of Article 6 read as follows: “1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” A. The parties' submissions 1. The Government's submissions 30. The Government submitted, in the first place, that the applicants' complaints fell outside the scope of Article 6 §§ 1 and 2 of the Convention. They had had, for reasons outlined by the Government, a fair trial in respect of their conviction under section 52 of the 1939 Act. Since Article 6 provides protection of a procedural nature for the determination of a criminal charge, the applicants could not rely on Article 6 effectively to challenge the offence under section 52 itself. In addition, both were acquitted on the charge of membership of an illegal organisation so that they could not, in that respect, complain of a violation of the procedural guarantees of Article 6 of the Convention. 31. Secondly, the Government pointed to substantial safeguards which exist in order to minimise the risk that an individual may wrongfully confess to a crime, which safeguards were noted by the High Court in the present applicants' constitutional action (see paragraph 15 above). 32. Thirdly, the Government maintained that section 52 of the 1939 Act was a reasonable and appropriate measure given that that section did not provide for, or allow, the use in subsequent criminal proceedings against an accused of information obtained compulsorily from that person. While the domestic courts in the applicants' case left the question open, if there were cases where information obtained pursuant to section 52 had been later introduced in evidence against the accused, the Government could not find any such case. They pointed out that the statement of the Court of Criminal Appeal in the McGowan case cited above on which the applicant relied was obiter dictum since no section 52 requests had been made of that accused. In any event, the matter was clarified for the future by the Supreme Court in its judgment of January 1999 in the National Irish Bank Ltd case cited above. That court found that compelling a person to confess and then convicting him on the basis of the compelled confession would be contrary to Article 38 of the Constitution. It also found that any other evidence obtained as a result of information provided under section 52 of the 1939 Act would be admitted in evidence in a subsequent trial only if the trial judge considered, in all the circumstances of the case, that it would be just and fair to admit it. 33. Fourthly, the Government also considered that section 52 of the 1939 Act was a proportionate response given the security situation pertaining in the Irish State related to Northern Ireland and the consequent concerns to ensure the effective administration of justice and to preserve public peace and order. The Government maintained that, as it is legitimate to impose sanctions in civil matters (such as, for example, taxation matters) when a citizen does not divulge information, the power to obtain information under threat of sanction is all the more necessary in criminal matters where the information sought could be essential for the investigation of serious and subversive crime. They noted that the applicants were suspected by the police of membership of the IRA and of having been involved in the bombing of 23 October 1990 and that their questioning under section 52 of the 1939 Act took place in the context of police investigations into that bombing, an explosion which caused the death and serious injury of many persons. The Government emphasised that section 52 of the 1939 Act remained applicable only as long as a proclamation under section 35 of the 1939 Act was in force. As such, section 52 was a part of Irish law only as long as it was considered warranted by a subsisting terrorist and security threat. The Government summarised the duration and level of violence to the date of their observations, detailed recent bombings and other atrocities, referred to a public statement in December 1999 of the Continuity IRA (who are committed to continuing an armed campaign) and outlined recent weapons, explosives and vehicle bomb seizures. Consequently, they considered that the maintenance of the section 35 proclamation continued to be necessary. This necessity had been constantly reviewed, most recently in March 1998, when it was decided to maintain the proclamation in force, the Government noting, in this context, that the single worst atrocity of the entire period of the proclamation occurred in August 1998 when twenty-nine persons lost their lives in a bombing in Omagh. The Government also referred to their commitment as regards the Offences against the State Acts in the Good Friday Peace Agreement of 10 April 1998. Moreover, the use of section 52 of the 1939 Act was strictly limited to arrests and detention under section 30 of that Act and the circumstances in which section 30 came into play were, in turn, strictly limited. The domestic courts were, in addition, vigilant in ensuring that the arrest powers under section 30 were not abused or used for improper purposes (The People (D.P.P.) v. Quilligan and O'Reilly [1986] Irish Reports 495 and The State ( Trimbole ) v. the Governor of Mountjoy Prison [1985] Irish Reports 550). 34. Finally, the Government distinguished the Saunders v. the United Kingdom judgment (17 December 1996, Reports of Judgments and Decisions 1996-VI) on the basis that the Court condemned the use at trial of evidence obtained from the accused under compulsion but not the means by which that evidence was initially obtained. They also distinguished the Funke v. France judgment ( 25 February 1993, Series A no. 256-A), pointing out that Mr Funke was subjected to a continuing sanction as long as he refused to provide the requested information. The John Murray v. the United Kingdom judgment (8 February 1996, Reports 1996-I) was also distinguished, the Government emphasising that Mr Murray's case related to the subsequent drawing of negative inferences from his silence during questioning whereas the present applicants were acquitted on the charges of membership of an unlawful organisation. The Government considered the Serves v. France case (judgment of 20 October 1997, Reports 1997-VI) to be similar to the present case but, nevertheless, also distinguishable in that Mr Serves's objection was premature because he refused to take the oath as a witness rather than being compelled to respond to questions. 2. The applicants' submissions 35. The applicants emphasised the precise nature of their complaints. Information was demanded of them while they were in police custody. On the one hand, they were warned that a failure to answer could itself entail a criminal conviction (section 52 of the 1939 Act) and, on the other, the police officers advised them of their right to remain silent (the standard caution). They did not deny that the State was entitled to have certain information-gathering powers, but submitted that the State was not entitled to force a person to provide it and to use that information thereafter against that person. They relied on their rights to silence and against self-incrimination noting, as was accepted by the High Court in their case, that the fairness of a trial can be compromised because of what happened prior to it. 36. As to the domestic law applicable to the use against the accused of prior involuntary statements and the Government's reliance on the National Irish Bank Ltd case, the applicants pointed out that the legal position at the relevant time was that any information they provided could have been admissible in subsequent criminal proceedings against them and they referred, in this respect, to the judgments of the High and Supreme Courts in their constitutional proceedings. In addition, they disputed the Government's interpretation of the judgment of the Supreme Court in the National Irish Bank Ltd case, pointing out that even after that judgment it is still not clear if involuntary confessions could be used in a subsequent trial or as a basis for gathering further evidence to be used in a subsequent trial. In the first place, the Supreme Court confirmed that Article 38 of the Irish Constitution required that any confession admitted against an accused person in a criminal trial should be a voluntary confession but that court did not, and did not have to, resolve the question of whether a test of proportionality could be applied to dilute the protection offered by Article 38 of the Constitution when, for example, national security matters are alleged to be at issue. The applicants considered this important as the domestic courts in their cases balanced the security concerns underlying the 1939 Act against their constitutional rights, an approach continued by the Government in their submissions to this Court. Secondly, the Supreme Court rejected the contention that no use at all could be made of any such confessions so that it would be for the trial judge to decide in all the circumstances of the case whether it would be fair to admit evidence obtained as a result of or in consequence of a compelled confession. This uncertainty is, according to the applicants, itself unacceptable under the Convention. In any event, even if the National Irish Bank Ltd case did clarify the position as the Government alleged, it did not do so until January 1999, many years after the applicants were questioned and convicted under section 52 of the 1939 Act. 37. The applicants further considered the Government's reliance on matters of public security and proportionality to have been misplaced, noting that the Court in the Saunders case cited above pointed out that the public interest could not be relied on to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during later trial proceedings. In any event, the public policy and security concerns could have been addressed otherwise. Accordingly, if the purpose of the section 52 request was to prosecute the person to whom the request was made, certain negative inferences could have been drawn from that accused's silence (as in the John Murray case cited above) or if the objective of the section 52 request was to investigate a crime committed by others, the request could have been coupled with a clear immunity from prosecution in favour of the addressee of the request in respect of and based upon answers so provided. 38. As to the previous case-law of this Court referred to by the Government, the applicants pointed out that, inter alia, their punishment for not providing information placed them in an even worse position than Mr Funke (see the Funke judgment cited above): the demands were made of them in police custody; the request was for oral admissions and not for physical evidence which existed independently of the applicants as in Mr Funke's case; and they served substantial prison terms for refusing to provide the information requested. They were in a worse situation than Mr Murray (see the John Murray judgment cited above) since he was only sanctioned by the drawing of adverse inferences at his trial. B. The Court's assessment 1. Applicability of Article 6 §§ 1 and 2 of the Convention 39. The Government argued that Article 6 could not apply to the applicants' complaints because of their later acquittal on the charge of membership of an unlawful organisation (“the substantive proceedings”) and because they had had a fair hearing in relation to the other charge under section 52 of the 1939 Act. The applicants considered that they are entitled to rely on Article 6 § 1 given that they were convicted of an offence and sentenced to imprisonment for having relied on their rights guaranteed by that Article. 40. The Court recalls its established case-law to the effect that, although not specifically mentioned in Article 6 of the Convention, the rights relied on by the applicants, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right in question is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention (see the Saunders judgment cited above, p. 2064, § 68). The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. The Court would note, in this context, that the present case does not concern a request, through the use of compulsory powers, of material which had an existence independent of the will of the applicants, such as documents or blood samples (ibid., pp. 2064-65, § 69). 41. The Court observes that the applicants complained under Article 6 of the Convention about having been punished, through the application of section 52 of the 1939 Act, for relying on their rights to silence, against self-incrimination and to be presumed innocent during police questioning in the course of a serious criminal investigation. It recalls that the autonomous meaning of the expression “charge” in Article 6 § 1 of the Convention means that a person can be considered to have been “charged” for the purposes of that Article when that individual's situation has been “substantially affected” (see the Serves judgment cited above, p. 2172, § 42). 42. While the present applicants had not yet been formally charged on 24 October 1990 when the section 52 requests were made, the Court considers that they were, at that stage, “substantially affected” and therefore “charged”, in the above-noted sense, with membership of the IRA and with some involvement in the bombing in October 1990. The High Court noted that it was suspected that the bombing had been carried out by the IRA and that the applicants had been arrested on suspicion of membership of the IRA and of involvement in that bombing. The Government confirmed this in their observations. They were arrested within approximately twenty-four hours of the bombing in a house close to the site of the explosion while that house was being searched by the police on the basis of a warrant. They were expressly arrested and detained under section 30 of the 1939 Act. Having been cautioned, they were questioned, inter alia, about the bombing. The subsequent section 52 requests related to the applicants' movements around the time of that bombing. 43. However, it is true that, while the applicants may have been so charged within the meaning of Article 6 when the section 52 requests were made, they were acquitted in the substantive proceedings relating to the charge of membership of the IRA. The Court recalls that an accused's acquittal, in general, precludes that person from claiming to be a victim of a violation of the procedural guarantees of Article 6 (see, for example, Byrn v. Denmark, application no. 13156/87, Commission decision of 1 July 1992, Decisions and Reports 73, p. 5). 44. Nevertheless, the Court notes that this latter principle has been refined in certain circumstances. Article 6 § 2 has already been applied, and violations of that provision found, in the Minelli and Sekanina cases (Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62, and Sekanina v. Austria, judgment of 25 August 1993 Series A no. 266-A), even though the relevant national courts concerned had, in the former case, closed the proceedings because the limitation period had expired and had, in the latter case, acquitted the applicant. It has also found Article 6 § 2 to be applicable in respect of the public comments of police officers suggestive of an accused's guilt of charges even though the proceedings on those charges were subsequently discontinued (see the Allenet de Ribemont v. France judgment of 10 February 1995, Series A no. 308, pp. 15-17, §§ 32-37). Moreover, while Mr Funke was convicted for not supplying information to the customs authorities, the criminal proceedings initially considered by those authorities as regards his financial dealings with other countries were never actually initiated against him (see the Funke judgment cited above). 45. In the Allenet de Ribemont case, the Court explained this refinement, pointing out that the Convention, including Article 6 § 2, must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory (see the Allenet de Ribemont judgment cited above, p. 16, § 35). Applying this approach to the present case, the Court observes that, if the applicants were unable to rely on Article 6, their acquittal in the substantive proceedings would exclude any consideration under Article 6 of their complaints that they had been, nevertheless, already punished prior to that acquittal for having defended what they considered to be their rights guaranteed by Article 6 of the Convention. 46. In such circumstances, the Court finds that the applicants can rely on Article 6 §§ 1 and 2 in respect of their conviction and imprisonment under section 52 of the 1939 Act. 2. Compliance with Article 6 §§ 1 and 2 of the Convention 47. The Court accepts that the right to silence and the right not to incriminate oneself guaranteed by Article 6 § 1 are not absolute rights (see the John Murray judgment cited above, pp. 49-50, § 47). 48. However, it is also recalled that Mr Funke's criminal conviction for refusing to provide information requested by the customs authorities was considered to amount to a violation of Article 6 § 1. In that case, the Court noted that the customs authorities had secured Mr Funke's conviction in order to obtain certain documents which they believed existed, although they were not certain of the fact. The Court found that the customs authorities, being unable or unwilling to procure them by some other means, attempted to compel Mr Funke himself to provide the evidence of offences he had allegedly committed. The special features of customs law were found insufficient by the Court to justify such an infringement of the right of anyone charged with a criminal offence, within the autonomous meaning of that expression in Article 6, to remain silent and not to contribute to incriminating himself (see the Funke judgment cited above, p. 22, § 44). In the John Murray judgment, the Court described the Funke case, pointing out that the “degree of compulsion” which had been applied through the initiation of criminal proceedings against Mr Funke was found to have been incompatible with Article 6 because “in effect, it destroyed the very essence of the privilege against self-incrimination” (see the John Murray judgment cited above, p. 50, § 49). 49. The Government distinguished the Funke case from the present application on the basis of the sanctions imposed. The Court does not find this argument persuasive. The nature of the sanction inflicted on Mr Funke (accumulating fines) may have been different from that imposed in the present case (a single prison sentence). However, both cases concerned the threat and imposition of a criminal sanction on the applicants in question because they failed to supply information to authorities investigating the alleged commission of criminal offences by them. 50. However, the Government pointed out that section 52 of the 1939 Act should be considered against the background of the numerous protections available to persons in the applicants' position. 51. The Court notes that the High Court considered that such protections minimised the risk of accused persons wrongfully confessing to a crime and of an abuse of the powers conferred by section 52 of the 1939 Act. Important as they are, the Court is, however, of the view that such protections could only be relevant to the present complaints if they could effectively and sufficiently reduce the degree of compulsion imposed by section 52 of the 1939 Act to the extent that the essence of the rights at issue would not be impaired by that domestic provision. However, it is considered that the protections listed by the High Court, and subsequently raised by the Government before this Court, could not have had this effect. The application of section 52 of the 1939 Act in an entirely lawful manner and in circumstances which conformed with all of the safeguards referred to above could not change the choice presented by section 52 of the 1939 Act: either the information requested was provided by the applicants or they faced potentially six months' imprisonment. 52. The Government also maintained that section 52 of the 1939 Act was a reasonable measure given that a statement made pursuant to that section was not later admissible in evidence against its author and because any evidence obtained as a result of such a statement could only be admitted if the trial judge considered it fair and equitable to do so. The applicants essentially considered that any relevant indications in the domestic case-law prior to the National Irish Bank Ltd judgment cited above indicated that such section 52 statements could be later admitted in evidence against their author and that the latter case did not authoritatively clarify this question. In any event, the applicants pointed to the conflicting cautions given to them on 24 October 1990. 53. The Court considers that the legal position as regards the admission into evidence of section 52 statements was particularly uncertain in October 1990 when the applicants were questioned. It notes that the text of section 52 of the 1939 Act is silent on this point. The Government did not refer to any domestic case-law prior to October 1990 which would have authoritatively excluded the later admission into evidence against the applicants of any statements made by them pursuant to those requests. Nor did the Government exclude the possibility that, prior to October 1990, statements made pursuant to section 52 had in fact been admitted in evidence against accused persons. The Government's position was rather that, in any event, the situation had been clarified for the future by the January 1999 judgment in the National Irish Bank Ltd case. This uncertainty about the domestic legal position in October 1990 is underlined by the comments of the Supreme Court in the present applicants' constitutional proceedings on the judgment of the Court of Criminal Appeal in the earlier McGowan case (see paragraphs 16 and 26-27 above). In any event, the applicants were provided with conflicting information in this respect by the questioning police officers on 24 October 1990. At the beginning of their interviews they were informed that they had the right to remain silent. Nevertheless, when the section 52 requests were made during those interviews, they were then effectively informed that, if they did not account for their movements at particular times, they risked six months' imprisonment. The only reference during the interviews to the possible use of statements made by the applicants in any later proceedings was to inform them that anything they did say would be written down and might be used against them. 54. Given this uncertainty, the position in October 1990 as regards the later admission into evidence of section 52 statements could not have, in the Court's view, contributed to restoring the essence of the present applicant's rights to silence and against self-incrimination guaranteed by Article 6 of the Convention. The Court is not, therefore, called upon in the present case to consider the impact on the rights to silence or against self-incrimination of the direct or indirect use made in later proceedings against an accused of statements made pursuant to section 52 of the 1939 Act. 55. Accordingly, the Court finds that the “degree of compulsion” imposed on the applicants by the application of section 52 of the 1939 Act with a view to compelling them to provide information relating to charges against them under that Act in effect destroyed the very essence of their privilege against self-incrimination and their right to remain silent. 56. The Government contended that section 52 of the 1939 Act is, nevertheless, a proportionate response to the subsisting terrorist and security threat given the need to ensure the proper administration of justice and the maintenance of public order and peace. 57. The Court has taken judicial notice of the security and public order concerns detailed by the Government. However, the Court recalls that in the Saunders case (judgment cited above, pp. 2066-67, § 74) it found that the argument of the United Kingdom government that the complexity of corporate fraud and the vital public interest in the investigation of such fraud and the punishment of those responsible could not justify such a marked departure in that case from one of the basic principles of a fair procedure. It considered that the general requirements of fairness contained in Article 6, including the right not to incriminate oneself, “apply to criminal proceedings in respect of all types of criminal offences without distinction from the most simple to the most complex”. It concluded that the public interest could not be relied on to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings. Moreover, the Court also recalls that the Brogan case (Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B) concerned the arrest and detention, by virtue of powers granted under special legislation, of persons suspected of involvement in terrorism in Northern Ireland. The United Kingdom government had relied on the special security context of Northern Ireland to justify the length of the impugned detention periods under Article 5 § 3. The Court found that even the shortest periods of detention at issue in that case would have entailed consequences impairing the very essence of the relevant right protected by Article 5 § 3. It concluded that the fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism was not, on its own, sufficient to ensure compliance with the specific requirements of Article 5 § 3 of the Convention. 58. The Court, accordingly, finds that the security and public order concerns relied on by the Government cannot justify a provision which extinguishes the very essence of the applicants' rights to silence and against self-incrimination guaranteed by Article 6 § 1 of the Convention. 59. It concludes, therefore, that there has been a violation of the applicants' right to silence and their right not to incriminate themselves guaranteed by Article 6 § 1 of the Convention. Moreover, given the close link, in this context, between those rights guaranteed by Article 6 § 1 of the Convention and the presumption of innocence guaranteed by Article 6 § 2 (see paragraph 40 above), the Court also concludes that there has been a violation of the latter provision. iI. ALLEGED VIOLATION OF ARTICLES 8 and 10 OF THE CONVENTION 60. The applicants also complained that section 52 of the 1939 Act constituted a violation of their rights guaranteed by Article 8 (referring to the private life aspect of that provision) and by Article 10 of the Convention. 61. The relevant parts of Article 8 read as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety ..., for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others.” The relevant parts of Article 10 read as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, ... for the protection of the ... rights of others ...” 62. The Government submitted that there had been no violation of either Article, pointing out that any interference with the applicants' rights under those Articles was in accordance with the law and proportionate to legitimate aims pursued, taking account of the margin of appreciation afforded to the State in such cases. The section 52 requests made of the applicants could have served either in the investigation of crimes of which the applicants were suspected or of crimes committed by others. Moreover, the background to the present case was the commission of an atrocity by subversives and, given the secrecy surrounding the activities of subversives, the Government considered it difficult to see how the relevant information could have been otherwise obtained. The applicants referred to the correlative right not to speak or furnish information guaranteed by Article 10 and to their entitlement to maintain the privacy of their own personal lives and maintained that their conviction and sentencing under section 52 of the 1939 Act constituted a disproportionate interference with their rights protected by Articles 8 and 10 of the Convention. 63. The Court considers that the essential issue raised by the applicants was the compulsion imposed by section 52 of the 1939 Act to respond to the questions of police officers investigating the commission of a serious criminal offence, a matter considered above by the Court under Article 6 of the Convention. It does not consider therefore that the applicants' complaints under Articles 8 and 10 of the Convention give rise to any separate issue. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 65. The applicants did not claim that they had suffered any pecuniary damage. 66. They claimed compensation, however, for non-pecuniary damage. They pointed out that, as a direct result of section 52 of the 1939 Act, they were each convicted of a criminal offence and each served a substantial term of imprisonment (from 26 June to 10 November 1991 ). They therefore claimed 50,000 Irish pounds (IEP) for all “injuries” sustained and a further unspecified sum in compensation for the damage to their reputations and for the distress and anxiety suffered. 67. The Government argued that, in the absence of any substantiation of the alleged injuries, anxiety, distress or damage to their reputations, the Court should reject those claims. Alternatively, should the Court consider that the applicants had suffered some non-pecuniary damage as a result of their convictions and imprisonment, the Government maintained that a finding of a violation would be sufficient just satisfaction. Should, nevertheless, the Court award some damages as regards the injuries sustained as a result of their convictions and imprisonment, the Government submitted that this could be regarded as sufficient to cover any alleged damage to their reputation. The Government requested the Court to take into account, in considering the applicants' claims, that they were asked to account for their movements during an investigation into a bombing which resulted in the death and serious injury of several persons. 68. The Court observes that, as a direct consequence of the violation found in this case, each applicant was convicted of a criminal offence and spent from 26 June to 10 November 1991 in prison. It notes that neither applicant has attempted in any way to detail or substantiate the alleged impairment of reputations to which they referred, although it accepts that, as a result of his criminal conviction and imprisonment, each applicant experienced certain inconvenience, anxiety and distress. The Court concludes that each applicant suffered non-pecuniary damage for which a finding of a violation does not afford just satisfaction. Making its assessment on a equitable basis, it awards each applicant IEP 4,000 in compensation for non-pecuniary damage. B. Costs and expenses 69. The applicants initially claimed legal costs and expenses for both the domestic and Convention proceedings. The High and Supreme Courts had recommended that the legal costs and expenses before those courts be discharged by the “Attorney-General's Scheme”, but by letter dated 15 January 1999 the Attorney-General indicated that the proceedings were not of a type that fell within the relevant scheme. The applicants' counsel gave the opinion in August 1999 that the Attorney-General's refusal to cover those costs from the relevant scheme of legal aid was invalid. The Attorney-General then indicated, by a letter dated 24 February 2000, that the relevant scheme would in fact discharge the costs of the applicants' domestic proceedings, without prejudice to the Attorney-General's position that the scheme was not liable to do so. Accordingly, the applicants discontinued their claim before this Court for the costs of the domestic proceedings. Their remaining claim relates to the costs of the Convention proceedings only and is made up of solicitors' costs in the sum of IEP 5,000, counsel's fees in the sum of IEP 2,250 and expenses of IEP 500 amounting to a total sum claimed (inclusive of value-added tax (VAT)) of IEP 9,377.50. The Government accepted that, subject to certain items in the applicants' bill of costs being properly vouched (including counsel's fees), those fees were reasonable apart from two matters. They considered that a sum of IEP 250 would be more appropriate as regards outlay and they rejected the applicants' claim for costs regarding the preparation of a bill of the costs of the domestic proceedings, since the applicants withdrew their claim before this Court for the costs of those proceedings. 70. The Court recalls that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). The Court notes that the applicants did not pursue before this Court their claim for the costs of the domestic proceedings before the High and Supreme Courts, given the undertaking from the Attorney-General to discharge those legal costs and expenses out of the Attorney-General's Scheme. As to the counsel's fees to which the Government refer, the Court considers the work completed by counsel for the Convention proceedings to be evident from the detailed bill of costs submitted by the applicants' solicitor and it notes that the Government did not in principle contest the amount claimed in respect of counsel. It also considers the outlay claimed to be reasonable as to quantum. As to the applicants' claim regarding time spent preparing a bill of the costs of the domestic proceedings for the purposes of their just satisfaction proposals to this Court, the Court notes that they were not informed that the costs of those proceedings would be discharged from the Attorney-General's scheme until they had prepared and submitted their just satisfaction proposals. Accordingly, the Court finds that the costs incurred and claimed in preparing the relevant bill of costs were necessarily and reasonably incurred. 71. Having regard to the foregoing, the Court awards to the applicants, in respect of their legal costs and expenses, the sums claimed by them namely, IEP 9,377.50 (which figure is inclusive of any VAT that may be chargeable) less the amount of legal aid paid by the Council of Europe to the applicants in the sum of 5,000 French francs. C. Default interest 72. According to the information available to the Court, the statutory rate of interest applicable in Ireland at the date of adoption of the present judgment is 8% per annum. | The Court held that there had been a violation of Article 6 § 1 (right to a fair trial) and 6 § 2 (presumption of innocence) of the Convention. It found that the security and public order concerns invoked by the Irish Government could not justify a provision which extinguishes the very essence of the applicants’ rights to silence and against self-incrimination guaranteed by Article 6 § 1 of the Convention. Moreover, given the close link with the presumption of innocence guaranteed by Article 6 § 2, there had also been a violation of that provision. |
908 | Tribunal established by law | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Outline planning decisions 105. Section 2a of the Town and Country Planning Act empowers the Minister for Housing, Planning and Environment Management together with the other ministers concerned in each case to prepare plans, known as outline planning decisions, for particular aspects of national planning policy (section 2a ( 1 )). At the relevant time (that is before 1 January 1994) the draft for such a plan was required to be laid open for public inspection for a period of between one and three months, an announcement being made beforehand in the Netherlands Government Gazette and the local media. Anyone minded to do so could submit their views for a period of one month after the end of the inspection period (section 2a ( 2 ) ). The draft was transmitted to the Lower House of Parliament for information at the time of its being laid open for public inspection (section 2a ( 5 ) ). 106. The ministers were required to consult the authorities of the provinces, regional surface waterboards, municipalities and any other public-law entities, as appropriate, about the draft (section 2a ( 3 ) ). The advice of the Planning Advisory Board had to be sought (section 2a ( 4 ) ). 107. The ministers were then required to transmit the outline planning decision – which by this time no longer had the status of a draft – to the Lower House for approval. The plan had to be accompanied by a general statement setting out the way in which any views submitted by interested parties, the results of consultations with lower government bodies and the advice of the Planning Advisory Board had been taken into account (section 2a ( 6 ) ). 108. The Lower House was entitled to send the outline planning decision back to the ministers concerned for modification before deciding whether or not to approve it. Thereafter it could withhold its approval of all or part of the plan (section 2a ( 7 ) ). 109. The Lower House then transmitted the outline planning decision, as approved by it, to the Upper House of Parliament. The latter House could decide to approve it or not, but could not amend it (section 2a ( 8 ) ). If approved by the Upper House, the outline planning decision came into force (section 2a ( 7 )). Once it was in force, the outline planning decision was published in the Official Bulletin and the local media (section 2a ( 9 ) ). 110. Although there is no specific provision for any appeal to an administrative tribunal against an outline planning decision, the Administrative Jurisdiction Division of the Council of State held in its decision of 31 January 1997 – that is the decision on the appeals against the outline planning decision in the present case (see paragraphs 62-69 above) – that the decisive moment for lodging an appeal was when the ministers resubmitted the outline planning decision to the Lower House of Parliament after the latter had given them the opportunity to modify it ( that is, for the purposes of the present case, Outline Planning Decision – Part 3A ). 111. Since 1 January 1994 it is provided that, in so far as an outline planning decision contains policy decisions about major projects of national importance, all further planning relating to such projects is subject to the limitations set out in these policy decisions (section 39). B. The Transport Infrastructure Planning Act 112. The Transport Infrastructure Planning Act, as in force since 1 January 1994, requires the Minister for Transport and Communications to consult the local and regional authorities whose territories may be affected and, in the case of a railway project, the prospective exploiter of the railway before drawing up a draft routing decision (section 6). This draft is then transmitted to them, after which they have the opportunity to comment (sections 11 ( 1 ), 12( 1 ) and ( 2 ), and section 13). 113. The minister then draws up a final routing decision and may if necessary require the local and regional authorities to modify their own local and zoning plans (section 15( 1 ) - ( 3 ) ). The routing decision is transmitted to Parliament with an explanatory statement (section 16 ( 1 ) ). Non-binding time-limits are set for the various stages of the procedure. 114. Anyone with an interest may lodge an appeal against the routing decision with the Administrative Jurisdiction Division of the Council of State (section 15 ( 4 ) ). 115. Chapter V of the Transport Infrastructure Planning Act contains special provisions governing the procedure relating to major projects of national importance. This procedure is to be followed if an outline planning decision is in force (section 21). In such cases the outline planning decision is to form the basis of, and be transformed into, a draft routing decision (section 22). If changes to the draft routing decision appear necessary in view of observations received from interested parties or local - government bodies, then these changes are to remain within the limits drawn by the outline planning decision (section 23 ( 1 ) ). 116. The Minister for Transport and Communications, together with the Minister for Housing, Planning and Environment Management, then draws up a final routing decision and may, if necessary, require the local and regional authorities to modify their own local and zoning plans (section 24 ( 1 ) - ( 3 ) ). 117. Anyone with an interest may appeal against the final routing decision to the Administrative Jurisdiction Division of the Council of State (section 24 ( 4 ) ). No separate appeal lies against the outline planning decision if it is followed within one year from its entry into force by a final routing decision (section 24 ( 5 ) ). C. Historical overview of the Council of State and its Divisions 118. The Council of State was established by Emperor Charles V in 1531 in order to assist and advise his sister, Mary of Hungary, whom he had appointed regent ( landvoogdes ) of the Low Countries to rule on his behalf. 119. Following the Low Countries ’ secession from Spain in 1581 and in the course of the subsequent establishment of the independent Republic of the Seven United Netherlands Provinces, which was formalised in 1648 by the Treaty of Westphalia, the Council of State developed into a body that, together with the Stadtholder ( Stadhouder ), was charged with daily government. The control over their governance was exercised by the representatives of the United Provinces sitting in the States General ( Staten- Generaal ). 120. The Council of State was abolished in 1795, when France occupied the Republic. Napoleon transformed the Republic into the Kingdom of Holland in 1806 and, in 1810, incorporated it into the French Empire. In 1805 the Council of State had been reinstated as an advisory body to the Grand Pensionary ( Raadpensionaris ), who was appointed by the legislative body to head the then executive. The Council of State exercised this function until 1810. The Kingdom of the Netherlands regained independence in 1813. According to the 1815 Netherlands Constitution ( Grondwet ), the monarch had an obligation to consult the Council of State before legislative acts and measures of internal administration were enacted. The monarch was further free to consult the Council of State on other matters. 121. A further function of the Council of State was introduced in 1861, namely that of hearing administrative disputes in which an appeal had been lodged with the Crown ( Kroonberoep ) and advising the Crown, consisting of the inviolable monarch and the responsible minister or ministers, on the ruling to be given by the Crown on the appeal. The Crown was free to depart from this advice. For the exercise of this function, the Administrative Litigation Division of the Council of State ( Afdeling voor Geschillen van Bestuur van de Raad van State ) was created. 122. On 1 July 1976 the Act on Administrative Jurisdiction as to Decisions of the Administration ( Wet administrative rechtspraak overheidsbeschikkingen – “ the AROB Act”) came into force, which provided for an administrative appeal procedure in statutorily defined categories of administrative disputes not eligible for an appeal to the Crown. The final decision on such disputes was to be taken by a newly established Division of the Council of State, that is the Judicial Division of the Council of State ( Afdeling Rechtspraak van de Raad van State ). 123. In order to give effect to the Court ’ s judgment of 23 October 1985 in Benthem v. the Netherlands (Series A no. 97), in which it was found that the Crown could not be regarded as a tribunal within the meaning of Article 6 § 1 of the Convention, the Interim Act on Crown Appeals ( Tijdelijke Wet Kroongeschillen ) was passed on 18 June 1987. It entered into force on 1 January 1988 and was to remain in force for five years. Under the provisions of this Act, the Administrative Litigation Division of the Council of State was to determine all disputes which formerly were to be decided by the Crown. The function of the Judicial Division of the Council of State was not affected by this Act. 124. On 1 January 1994 the General Administrative Law Act ( Algemene Wet Bestuursrecht ), laying down new uniform rules of administrative procedure, entered into force. On the same date the Interim Act on Crown Appeals and the AROB Act were repealed. The functions of both the Administrative Litigation Division and the Judicial Division, which thereby became defunct, were vested in a new division of the Council of State, the Administrative Jurisdiction Division ( Afdeling bestuursrechtspraak ). D. General features and functions of the Council of State 1. Membership of the Council of State 125. The Council of State is presided over by the monarch and consists of a vice- president and up to 28 ordinary councillors ( Staatsraden ) (section 1 of the Council of State Act ( Wet op de Raad van State )) and 55 extraordinary councillors ( Staatsraden in buitengewone dienst ) (section 4, as worded since 1 April 2001; prior to this date the maximum number of extraordinary councillors was 25). At present, the Council of State is composed of 27 ordinary councillors and 27 extraordinary councillors. 126. All councillors are appointed by royal decree ( Koninklijk Besluit ) following nomination by the Minister of the Interior and Kingdom Relations in agreement with the Minister for Justice. Appointments are for life, the age of retirement being 70 (sections 3 and 4). Extraordinary councillors submit proposals for the number of hours they wish to work, and their number is subsequently determined for five-year periods by royal decree. 127. Any candidate for membership of the Council of State is required to be a Netherlands national and to be at least 35 years old (section 5). In the appointment of ordinary councillors, care is taken to ensure that the composition of the Plenary Council of State ( Volle Raad ), which solely consists of ordinary councillors, reflects political and social opinion in the proportions represented in the Houses of Parliament ( Staten- Generaal ). However, membership of a political party is not a formal or material criterion. 128. Ordinary councillors are appointed primarily on the basis of their knowledge and experience, whether in a specific field or in relation to public administration and administrative law in general. They are mainly selected from the circle of politicians, governors, high-level civil servants, judges and academics. Extraordinary councillors are mainly selected from the judiciary on the strength of their specific judicial knowledge and experience. 129. Section 7 ( 1 ) of the Council of State Act sets out the posts, offices and professional activities that are incompatible with being vice- president of the Council of State and with being an ordinary councillor. These categories are extended in section 7 ( 2 ) of this Act with regard to the extraordinary councillors. This provision reads: “The vice- president, ordinary councillors and extraordinary councillors shall not hold any post the exercise of which is undesirable with a view to the proper discharge of their office, the preservation of their impartiality and independence, or the confidence therein.” 130. Pursuant to section 7 ( 3 ), the vice- president renders public any other positions held by members of the Council of State. This information is published in the Netherlands Government Gazette and posted on the Council of State ’ s official website. 2. Advisory function of the Council of State concerning draft legislation 131. As required by Article 73 of the Constitution, before the government submits to Parliament a bill for adoption, draft delegated legislation or a proposal to approve or denounce a treaty, it must seek the advisory opinion of the Council of State ( section 15 of the Council of State Act ). 132. In cases where proposed legislation does not originate from the government but from one or more members of the Lower House of Parliament, the Lower House will seek the advisory opinion of the Council of State (Article 15a). 133. For the purposes of delivering advisory opinions, the ordinary councillors are divided into five Sections, grouped by ministries. A bill is first scrutinised by officials, who set out their findings in a memorandum. The bill and this memorandum are subsequently transmitted to a rapporteur, who prepares a draft advisory opinion. This draft is then discussed in the Section concerned. It will subsequently be submitted to the Plenary Council of State for examination and adoption. 134. The Council of State examines draft legislation and explanatory memoranda in the light of a large number of criteria bearing on policy, points of law and technical legislative requirements. These criteria include compatibility with human rights conventions, European law, the Constitution, the Charter for the Kingdom of the Netherlands ( Statuut voor het Koninkrijk der Nederlanden ), general legislation and unwritten legal principles, as well as existing law and general regulations on the structure, formulation and presentation of bills and explanatory memoranda. It further examines the anticipated effectiveness, efficiency, feasibility and enforceability of the proposed regulations, the degree of compliance to be expected, as well as the internal consistency of the legislation, the legal certainty it provides and the quality of legal protection. 135. The Plenary Council of State, which is composed solely of the ordinary councillors, adopts the advisory opinions of the Council of State. The extraordinary councillors are not involved in the advisory function of the Council of State. It is further standing practice that the meetings of the Plenary Council of State are not attended by the extraordinary councillors. 3. Judicial function of the Administrative Jurisdiction Division 136. The Administrative Jurisdiction Division of the Council of State is entrusted with adjudicating administrative disputes, including applications for provisional relief, where the law so provides (section 26 of the Council of State Act ). Its cases are heard in accordance with the provisions of the General Administrative Law Act and the relevant provisions of the Council of State Act. 137. The Administrative Jurisdiction Division consists of all the ordinary councillors of the Council of State (not its vice- president) and all the extraordinary councillors. They all hold this position for life until their retirement at the age of 70. Among them a president of the Division is appointed by royal decree, also for life. 138. The president manages the work of the Administrative Jurisdiction Division and decides on the composition of its four Chambers. The first Chamber deals with cases involving town and country planning, the second Chamber with environment cases, the third Chamber with general appeals and the fourth Chamber with appeals in cases concerning aliens. The first two Chambers administer justice at first and sole instance, whereas the third and fourth Chambers hear appeals against judgments given by lower administrative courts. Cases before the Administrative Jurisdiction Division are dealt with by either a three-judge bench or a single judge. 139. With a view to guaranteeing the impartial administration of justice, the Administrative Jurisdiction Division has adopted certain principles, namely that a member who has been involved in an application for provisional relief will not be involved in hearing the proceedings on the merits; if an appeal is dealt with in simplified proceedings ( that is without an oral hearing), any objection ( verzet ) will not be heard by the member who gave the original judgment, and every member must be alert to any conflict of interest and, in case of any reasonable doubts, either withdraw from a case or acquiesce in a challenge to his or her impartiality. 140. Partly to facilitate this, and well in advance of hearings, members of the Administrative Jurisdiction Division assigned to a particular case are sent copies of the principal documents in the case, together with a list of parties involved and their legal counsel. In this way, each member can verify whether there are reasons for withdrawing from the case on grounds of, for instance, a previous position, kinship or any other relation between a member of the Administrative Jurisdiction Division and a party or legal representative. E. Combination of the advisory and judicial functions 141. From the above description it follows that some members of the Administrative Jurisdiction Division combine the judicial function with the advisory function, namely the ordinary councillors of the Council of State, while the extraordinary councillors perform only a judicial function within the Council of State. F. Effect given to Procola v. Luxembourg ( judgment of 28 September 1995 ) 142. In a memorandum appended to a letter dated 12 February 1998 to the Chairman of the Lower House, the Minister for Justice and the Minister of the Interior informed the Lower House that, in view of Procola (Series A no. 326) and given the fact that there was not yet communis opinio about its precise scope and its possible consequences for the Netherlands, the Council of State had adopted a provisional practice in anticipation of further clarification by the European Court of Human Rights in its future case-law (Lower House parliamentary documents 1997-98, 25 425, no. 3). 143. The dual function of the Council of State was subsequently debated at length in Parliament, which accepted the position taken by the government. 144. In parliamentary budget discussions held in 2000, the government confirmed its above position. In reply to a question put in the Lower House on the advisory and judicial functions of the Council of State in relation to the independence of the administration of justice, the government stated that, after Procola, the Council of State had adapted its internal working methods and that, referring to the contents of the Minister for Justice ’ s letter of 12 February 1998, these adaptations were of such a nature that so-called “ Procola risks ” were as good as excluded and that in this light the independent administration of justice was guaranteed (Lower House parliamentary documents 2000- 01, 27 400 II, no. 3). 145. The practice adopted by the Council of State was further set out in the Annual Report 2000 of the Council of State. The relevant section reads as follows: “Since it is as yet unclear how the European Court of Human Rights will decide on the combination of functions within the Netherlands Council of State and the effect thereof on objective independence and impartiality, or what criteria the European Court of Human Rights will apply in this respect and what boundaries will be drawn, the Administrative Jurisdiction Division has for the time being chosen criteria and determined boundaries itself. Also, the Council of State and its Administrative Jurisdiction Division consider it important that justice is also seen to be done. The procedure opted for in this connection, and about which the Ministers for Justice and of the Interior have already made announcements to the Lower House (Lower House parliamentary documents 1997-98, 25 425, no. 3), amounts to the following: If in an appeal which has been lodged in time with the Administrative Jurisdiction Division, the lawfulness is disputed of a legal provision which has previously been applied in the case or of another regulation concerning an aspect – for example incompatibility with European law – in respect of which the Council of State has in the past explicitly expressed an opinion in its advice on the proposed provision, and if a party has voiced doubts as to the independence and impartiality of the bench dealing with the appeal, the composition of this bench will be changed so as to ensure that only members who have not participated in the advice sit on this bench. For this are in any event eligible the extraordinary councillors, who are not involved in the advisory function, and those ordinary councillors appointed after the giving of the advice and those ordinary councillors in respect of whom it is objectively certain that they have not participated in the adoption of the advice in the Plenary Council of State. In such a situation, this will – thanks to this way of proceeding in the Division – therefore prevent appellants as far as possible from relying on Procola in a challenge or otherwise.” G. Challenge of members of the Administrative Jurisdiction Division 146. Members of the Administrative Jurisdiction Division to whom a case has been assigned may be challenged by any of the parties on the grounds of facts or circumstances which may affect their judicial impartiality (section 8(15) of the General Administrative Law Act taken together with section 36 of the Council of State Act ). 147. The challenge will be examined as soon as possible by a Chamber composed of three members of the Council of State, which shall not include the councillor(s) challenged. The challenging party and the councillor(s) challenged are offered the opportunity to be heard. A reasoned decision shall be given as soon as possible, against which no appeal lies (section 8(18) of the General Administrative Law Act taken together with section 36 of the Council of State Act ). 148. In the case-law developed by the Administrative Jurisdiction Division in relation to challenges based on the Council of State ’ s combined advisory and judicial functions in the light of Article 6 of the Convention, decisive importance is attached to the question whether or not the challenged councillor was involved in advising on the disputed legislation and whether the substance of the appeal concerns a point that was explicitly addressed in the advisory opinion given by the Council of State. 149. The Administrative Jurisdiction Division initially took as one of its criteria the degree to which members of the bench hearing the appeal had contributed to the advisory opinion. This criterion was dropped in later case ‑ law, as this information is not accessible to the general public and therefore the parties. The key questions remain whether the challenged member of the bench belonged to the Plenary Council of State at the time when the advisory opinion was given and whether any position was adopted in the advisory opinion that is opposed by the party that has lodged the challenge. Only in cases where these questions can be answered in the affirmative is it accepted that a party has justified grounds to fear that the councillor concerned is biased in respect of the subject of the dispute (see Administrative Jurisdiction Division, case no. E10.95.0026/W, judgment of 9 October 1997, and case no. EO1.96.0532/W, judgment of 10 December 1997, Jurisprudentie Bestuursrecht 1998/28). 150. The rejection of a challenge does not however preclude the possibility that members of the bench concerned subsequently decide to withdraw from the case in view of the substance of the appeal (see Administrative Jurisdiction Division, case no. E03.96.0765/1, Jurisprudentie Bestuursrecht 2001/72). 151. Since Procola was published, it has been relied on in ten challenges lodged before the Administrative Jurisdiction Division. All of these challenges have been rejected, either because members assigned to the appeal were not involved in the previous advisory opinions on the statutory provisions concerned, or because the points of law put to the Administrative Jurisdiction Division by the party having lodged the challenge were so remote from the previous advisory opinion that the fear of bias was found to be unjustified. 152. In an appeal in cassation lodged with the Supreme Court ( Hoge Raad ) against a judgment of 29 March 1999 of the Arnhem Regional Court ( Arrondissementsrechtbank ) in expropriation proceedings in connection with the construction of the Betuweroute railway, the appellant argued that the Regional Court, by confining itself to referring to the administrative procedures already pursued before the Administrative Jurisdiction Division, had neglected to rule on the legality and necessity of the expropriation and, in particular, that the Regional Court had failed to investigate technical alternatives such as tunnelling, which would make expropriation unnecessary. In this connection, referring to the Court ’ s judgment in Procola (cited above), he argued that the Council of State ’ s “structural impartiality” was in doubt and that it followed from this that he was entitled to have these issues reviewed by the ordinary courts. 153. In its judgment of 16 February 2000, the Supreme Court rejected these arguments. It agreed with the Regional Court that issues such as the necessity of building the railway at all and the choice of technical and routing alternatives were matters to be dealt with in administrative proceedings under the Town and Country Planning Act and the Transport Infrastructure Planning Act and not in expropriation proceedings. As to the appellant ’ s point concerning the impartiality of the Council of State, the Supreme Court held as follows: “3.2. [ The appellant] has submitted before the Regional Court – in so far as still relevant – in objection to the expropriation: ... (b) As the Council of State (as a whole, therefore including the Administrative Jurisdiction Division) has been involved in the enactment of the Transport Infrastructure Planning Act and in this respect, as an advisory organ, has issued a generally positive advice, the Council of State cannot be regarded as a structurally impartial tribunal within the meaning of Article 6 of the Convention; ... 3.4.5.1. In Part Ib of the cassation plea, which concerns the objection set out in 3.2 under (b) and with reference to the judgment of the European Court ... in Procola v. Luxembourg, the argument is repeated that was unsuccessfully raised before the Regional Court, namely that the royal decree must be reviewed in its entirety as doubts may arise as to the structural impartiality of the Council of State as a judicial body where members of the Council of State have subsequently advised about the Transport Infrastructure Planning Act and administer justice on a decision that has been taken on the basis of this Act. 3.4.5.2. However, the argument overlooks the point that the mere fact that advice was heard from the Council of State, in accordance with the statutory provisions concerned, about the bill that eventually led to the Transport Infrastructure Planning Act does not warrant the conclusion that fears as to the impartiality of the Administrative Jurisdiction Division of the Council of State, which had to judicially determine objections against the routing decision, are objectively justified. Part Ib of the cassation plea must therefore be dismissed.” THE LAW I. ADMISSIBILITY OF THE APPLICATIONS 154. The Government submitted that, with the exception of Mr and Mrs Raymakers, the applicants had not challenged the Administrative Jurisdiction Division or appealed to the civil courts on the ground that the administrative proceedings at issue did not offer sufficient guarantees of a fair procedure. According to the Government, both remedies were effective and capable of redressing the alleged violation of the Convention. The Government argued that none of the applicants, apart from Mr and Mrs Raymakers, had therefore exhausted domestic remedies as required by Article 35 § 1 of the Convention. 155. The applicants submitted that, although they had misgivings about the impartiality of the Administrative Jurisdiction Division, which some of them did in fact express in their appeal submissions, they had not lodged a formal challenge like Mr and Mrs Raymakers, fearing that this might have adverse consequences. They further pointed out that there were no substantial differences between the appeal lodged by Mr and Mrs Raymakers and those lodged by the other applicants. As to the remedy before the civil courts referred to by the Government, the applicants indicated that, according to the case-law of the civil courts as illustrated by the Supreme Court ’ s judgment of 16 February 2000 (see paragraph 153 above), the Administrative Jurisdiction Division is regarded as complying with the requirements of impartiality under Article 6 § 1 of the Convention. 156. The Court reiterates the relevant principles as to exhaustion of domestic remedies as set out in, inter alia, the Court ’ s judgment of 28 July 1999 in Selmouni v. France ( [ GC ], no. 25803/94, §§ 74-77, ECHR 1999-V). The purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. The obligation to exhaust domestic remedies is, however, limited to making use of those remedies which are likely to be effective and available in that their existence is sufficiently certain and they are capable of redressing directly the alleged violation of the Convention. An applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case ‑ law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail. 157. The Court can agree with the Government that, where it is alleged that a tribunal does not meet the requirements of independence or impartiality under Article 6 § 1 of the Convention, a challenge can be regarded as an effective remedy under Netherlands law for the purposes of Article 35 § 1. 158. In the present case, however, the challenge of Mr and Mrs Raymakers – based on the same grounds as now submitted by all applicants to the Court – was dismissed. The Court fails to see that a further challenge by the other applicants, who were parties in the same set of proceedings as Mr and Mrs Raymakers, could have resulted in a different decision. The Court therefore accepts that, in the particular circumstances of the present case, the other applicants were not required to avail themselves of that remedy because it would have been bound to fail. 159. As regards the civil remedy advanced by the Government, it is true that the Court has previously held this remedy to be an effective one where an administrative appeal procedure is considered to offer insufficient guarantees as to a fair procedure (see Oerlemans v. the Netherlands, judgment of 27 November 1991, Series A no. 219, pp. 21-22, §§ 50-57). However, in that case the applicant ’ s administrative appeal had been heard by the Crown (see paragraphs 121 and 123 above ) after the Court had concluded in Benthem v. the Netherlands ( judgment of 23 October 1985, Series A no. 97) that the Crown could not be regarded as a tribunal within the meaning of Article 6 § 1 of the Convention. 160. In their brief remarks about the remedy before the civil courts, the Government have not cited any domestic case-law in which a civil court agreed to hear an administrative appeal on the ground that, in view of the Court ’ s judgment of 28 September 1995 in Procola v. Luxembourg ( Series A no. 326 ), the Administrative Jurisdiction Division afforded insufficient guarantees as to independence and impartiality. The Supreme Court ’ s case-law referred to by the applicants in fact indicates that this argument was rejected by the Supreme Court. The Court considers that the applicants have sufficiently established that in the present case this remedy too could not be regarded as offering any reasonable prospect of success. 161. In these circumstances, the applications cannot be rejected for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. 162. The Court considers that the applicants ’ complaint that, from an objective point of view, the Administrative Jurisdiction Division cannot be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No other grounds for declaring it inadmissible have been established. The remaining part of the applications is therefore declared admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 11 above), the Court will immediately consider the merits of the applicants ’ complaint. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 163. The applicants complained that the Administrative Jurisdiction Division of the Council of State was not independent and impartial, in that the Council of State exercises both advisory and judicial functions. They alleged a violation of Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...” A. Applicability of Article 6 164. The applicability of Article 6 § 1 of the Convention was not in dispute between the parties and the Court sees no reason not to find that the proceedings at issue fall within the scope of this provision. B. Compliance with Article 6 1. Submissions before the Court (a) The applicants 165. The applicants submitted that, in the light of the Court ’ s judgments in Procola ( cited above ) and McGonnell v. the United Kingdom (no. 28488/95, ECHR 2000-II), the Administrative Jurisdiction Division cannot be regarded as an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention. In Procola, the Court indicated that, by reason of the combination of different functions within the Luxembourg Conseil d ’ Etat, this “institution ’ s structural impartiality” could be put in doubt. The applicants further submitted that the perception of appellants had to be regarded as decisive where it concerned a tribunal ’ s objective impartiality. Any doubts by appellants – based on reasonable and objectively justified grounds – as to the impartiality of a tribunal had to be dispelled. 166. The applicants considered that in this respect no distinction could be made between, on the one hand, a simultaneous exercise of different functions by one person and, on the other, an institutionalised simultaneous exercise of different structural tasks. To draw such a distinction would, from an appellant ’ s perspective, be artificial. The practical implementation of a norm based on such a distinction was likely to be inadequate and to offer an appellant insufficient guarantees and opportunities for control. 167. It would follow that, in appeals to the Administrative Jurisdiction Division, an investigation would have to be carried out in each case as to which statutory provisions were at issue when the Council of State advised on the relevant provisions, which councillors were then members of the Plenary Council of State, and what the content of the advice was. Apart from the risk of mistakes in such investigations, it was also incumbent on an appellant – who under administrative law was considered entitled to litigate without professional legal assistance – to verify whether such a possible combination of tasks existed. Appellants were often unable themselves to obtain a timely answer on the question how the Plenary Council of State was composed when an advice was given. Furthermore, in most cases appellants only became aware of the definite composition of the bench of the Administrative Jurisdiction Division shortly before the hearing of their case. 168. The applicants further submitted that the Council of State, in its advisory capacity, could not be compared to an independent and impartial judicial authority, in that it was a politically composed body having close ties with the government and the legislator. In this respect the applicants referred to section 22 of the Council of State Act, providing for a general possibility of consultation between the Council of State and the minister concerned, and submitted that no similar provision could be found in regulations on the status of the judiciary. 169. When considering the conditions for appointment as ordinary councillor – which are considerably less strict than for judges of the ordinary courts –, the appointment procedure itself and the role of the Council of State in the Netherlands legal order, it was, from the perspective of appellants, obvious that the Council of State had to be regarded as a part of the legislature and the executive. It was also clear that, in the exercise of its advisory functions, the Council of State dealt not only with questions of lawfulness but also with political and policy considerations. 170. As no distinction was made between the persons involved in the exercise of the Council of State ’ s advisory functions and those involved in the exercise of its judicial functions, the applicants considered that institutionalised simultaneous exercise of both the advisory and the judicial functions of the Council of State was incompatible with the requirement of objective impartiality under Article 6 § 1 of the Convention. 171. The applicants further submitted that the advisory opinions given by the Council of State on the Transport Infrastructure Planning Bill did in fact serve as a prelude to future adjudication of appeals lodged against the Betuweroute routing decision. In its advisory opinion it dealt intensively with the issues going to problems of the legislation applicable to the decision ‑ making process in relation to the planning of the Betuweroute railway. In this context the Council of State suggested the enactment of a special regulation for large-scale projects of (supra - )national importance such as the – expressly mentioned – Betuweroute railway, in order to allow a fast and efficient construction thereof, bypassing the normal legal - protection proceedings and the powers of local and regional public authorities. To this end the Council of State even suggested that, by way of transitory arrangements, the Transport Infrastructure Planning Act be rendered applicable to the decision-making process already underway in respect of the planning of the Betuweroute railway. This considerably restricted the opportunities for, as well as the scope of, judicial control, which was limited to some main aspects of the decision-making process. In its second advice the Council of State further advised that the envisaged routing of the Betuweroute railway be mentioned expressly in the Transport Infrastructure Planning Act. 172. From the perspective of appellants it could not therefore be maintained that the Administrative Jurisdiction Division of the Council of State was an independent and impartial tribunal. From their perspective it appeared that both the political and judicial decisions on the construction of the railway had eventually been taken by the same kind of institution. 173. In this context the applicants further referred to the fact that the bench of the Administrative Jurisdiction Division that heard their appeals had been composed of three ordinary councillors. In the applicants ’ opinion, this gave rise to an objectively justified impression that these members considered themselves bound by the advisory opinions given previously by the Council of State on the Transport Infrastructure Planning Bill in which, in addition, the President of the bench concerned had participated. 174. This impression was confirmed by the reserved manner in which the Administrative Jurisdiction Division had examined the challenged decisions on the construction of the Betuweroute railway. It had relied upon favourable expert opinions, without giving adequate reasons for attaching less value to opposing expert opinions submitted by the appellants. It could be concluded from this that the Council of State, in the exercise of its judicial functions in the instant case, had allowed itself to be too influenced by policy considerations, that is the desirability of a speedy construction of the Betuweroute railway, a point of view which had been subscribed to in the Council of State ’ s advisory opinions. 175. The applicants further argued that the policy adopted by the Council of State for preventing so-called “ Procola risks ” was inadequate and ineffective, in that this policy was formulated with insufficient precision and, further, had not been laid down in a regulation accessible to the general public. Furthermore, the Council of State did not indicate in concrete cases whether this policy had in fact been applied. At the material time the applicants could only deduce the existence of this policy from a memorandum sent by the Minister for Justice and the Minister of the Interior to the Lower House, after the decision on the appeals against the outline planning decision had already been taken. It was further only in the Annual Report 2000 of the Council of State, which was published in 2001, that an attempt was made to describe the “ Procola policy” applied by the Council of State. The applicants were of the opinion that, given the importance of the impartiality of the judiciary in a State respecting the rule of law, it could not be considered sufficient to refer merely to communications addressed to Parliament or to a chapter in an annual report. These kinds of guarantees for judicial impartiality should be laid down in a statutory regulation which was accessible to the general public. 176. The applicants submitted lastly that it was also incompatible with Article 6 § 1 of the Convention that the Council of State, according to the description of its Procola policy in its Annual Report 2000, only examined whether there was a Procola risk when an appellant “had advanced doubts as to the independence and impartiality of the bench dealing with the appeal”. It could be inferred that the Council of State only examined this issue seriously after having been requested to do so. Given the Contracting States ’ positive obligation under Article 6 § 1 of the Convention to organise their judicial systems in such a way that their courts were capable of meeting each of its requirements, including that of judicial impartiality, such a system could not be seen otherwise than as being incompatible with this provision. (b) The Government 177. According to the Government, the decision to construct the Betuweroute railway was taken after obtaining the consent of Parliament and after considering all the relevant interests. Construction projects like the one at issue in the present case were regulated by the Transport Infrastructure Planning Act and involved two stages, namely the taking of an outline planning decision containing the broad principles and the subsequent taking of a routing decision. The Government stressed that the Council of State had no advisory function whatsoever in the process leading to an outline planning decision or a routing decision and that an appeal against both types of decision lay to the Administrative Jurisdiction Division. 178. In administrative appeal proceedings the Administrative Jurisdiction Division examined solely the lawfulness of an administrative decision. The policy on which a decision was based and policy considerations that had played a role in the decision were not examined on their merits. Given the division of powers between the executive and the judiciary, there was no room for a more comprehensive review than an examination of the lawfulness of a challenged decision. Where the Administrative Jurisdiction Division concluded that a decision was unlawful, it quashed the decision and referred the case back to the competent administrative authority for a new decision with due regard to the considerations stated by the Administrative Jurisdiction Division. It did not give a fresh decision of its own. 179. The applicants ’ complaint was based solely on the fact that the bench of the Administrative Jurisdiction Division that dealt with their appeals against the routing decision had been composed of three ordinary councillors who were also members of the Plenary Council of State, which had issued an advisory opinion on the Transport Infrastructure Planning Bill. In the Government ’ s view, by adopting this position, the applicants had misconstrued the link between the Transport Infrastructure Planning Act – and hence the Council of State ’ s advice on it – and the determination of their appeals against the routing decision. 180. The proceedings in respect of the applicants ’ appeals had not involved any matter on which the Council of State had given an advisory opinion and they could not, therefore, have any grounds for fearing that the three judges had felt bound by an opinion previously given, since there had simply been no such opinion in respect of the routing decision. 181. The challenge lodged by Mr and Mrs Raymakers had been determined by three extraordinary councillors, who had never been involved in the exercise of the Council of State ’ s advisory functions. Two of the three ordinary councillors who determined the applicants ’ appeals against the routing decision had not yet joined the Council of State when this body exercised its advisory functions in respect of the Transport Infrastructure Planning Bill, and the advice given by the Council of State on this bill had not discussed or even touched upon the questions which the Administrative Jurisdiction Division had been called upon to determine in the applicants ’ appeals against the routing decision. This was supported by the applicants ’ failure to identify elements of the Council of State ’ s advisory opinion on the Transport Infrastructure Planning Bill which would cast doubt on the Administrative Jurisdiction Division ’ s impartiality in hearing the applicants ’ appeals. The Government therefore failed to see in what manner any member of the bench of the Administrative Jurisdiction Division that dealt with the applicants ’ case could have felt bound by a previous position taken by the Council of State. 182. Although the ordinary councillors sat in the Plenary Council of State as well as the Administrative Jurisdiction Division, the Government considered that there was no general incompatibility between delivering advisory opinions to the executive and exercising a judicial function. It was only in very rare cases that an advisory opinion on draft legislation and a specific ruling by the Administrative Jurisdiction Division in which the finalised legislation was applied related to “the same case” or amounted to “the same decision”. 183. According to the Government, it was clear from the Court ’ s judgments in Procola and McGonnell ( both cited above) that the key question was whether and how the same judge was directly involved in drafting regulations on which he or she was subsequently called upon to rule in a judicial capacity. The Government were therefore of the opinion that the mere fact that advisory and judicial functions were combined within a single body did not in itself vitiate the independence and impartiality of that body. The Government considered that the measures taken by the Administrative Jurisdiction Division in response to Procola constituted sufficient safeguards for securing its objective impartiality. (c) Third-party interventions ( i ) The Italian Government 184. The Italian Government submitted that for the purposes of assessing judicial impartiality, a distinction had to be drawn between an abstract assessment of a provision, such as an advisory opinion, and an evaluation of the application of a provision in a specific case. In their view, a judgment, evaluation or examination of a law did not prevent further judgments or evaluations of that same law. It was incompatible with the requirements of impartiality for a judge to assess specific facts twice, but not for an abstract provision to be assessed by the same judge in different individual cases. (ii) The French Government 185. The French Government drew attention to the fact that the French legislation on the operation of the French Conseil d ’ Etat and the status of its members were based on the principle of a simultaneous exercise of advisory and judicial functions by the same body. The French Conseil d ’ Etat was divided into five Administrative Divisions ( sections administratives ) : interior, finance, public works, social, and report and research, which were responsible for giving advisory opinions to the government, and one Judicial Division ( section du contentieux ) responsible for hearing administrative disputes. 186. The primary function of the Administrative Divisions was to ensure the lawfulness of legislation submitted to them. Their legal advice to the government aimed to prevent illegalities which judicial authorities would only be able to remedy later, once the administrative decision had been made and sometimes already applied. The existence of a body able to analyse an administrative decision or rule and provide legal advice before it was enacted, and hence improve its quality, also guaranteed greater stability of the rule of law. If administrative decisions were better protected against legal errors, they were less likely to be set aside by the judicial authorities and therefore more stable. 187. The inherent advantage of a simultaneous exercise of both advisory and judicial functions was that it was easier for the members of Administrative Divisions who were also members of the Judicial Division to identify illegalities, which meant that the quality of the advisory opinions was guaranteed. It was impossible to separate the judicial function of the Conseil d ’ Etat from its advisory responsibilities. The adviser to the government relied on case- law and the judge took into account the adviser ’ s opinion. This resulted in the best possible guarantee of legal certainty. 188. Nevertheless, the simultaneous assignment of Conseil d ’ Etat members to an Administrative Division and the benches of the Judicial Division was not without limits, in that the requirement of impartiality took precedence over this principle of dual assignment. The Conseil d ’ Etat observed the rule that any judge who had either assisted, in the course of duties performed outside the Conseil d ’ Etat, in drafting an administrative decision which was then challenged before the Judicial Division, or had even dealt with the decision in the past as a reporting judge ( rapporteur ) to an Administrative Division, had to withdraw from the case. 189. The French Government considered that the fact that the same point of law was submitted successively to the Conseil d ’ Etat in its advisory capacity and its judicial capacity did not as such constitute a ground, given its independence in both capacities, for an objective doubt in the mind of an appellant that could undermine the impartiality of the Judicial Division. The impartiality of a body where advisory and judicial responsibilities coexisted did not pose a problem where an advisory opinion concerned merely a point of law. Where it concerned a question of fact, the assessment of the question whether an appellant could have objectively justified fears of bias depended on the merits of each case. 2. The Court ’ s assessment 190. As is well established in the Court ’ s case-law, in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence. 191. As to the question of “impartiality” for the purposes of Article 6 § 1, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges ’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings (see Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I). 192. The concepts of independence and objective impartiality are closely linked and the Court will accordingly consider both issues together as they relate to the present case (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281, § 73). 193. Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court ’ s case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002 - IV), neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers ’ interaction. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position of the Netherlands Council of State. The Court is faced solely with the question whether, in the circumstances of the case, the Administrative Jurisdiction Division had the requisite “appearance” of independence, or the requisite “objective” impartiality (see McGonnell, cited above, § 51). 194. In deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, mutatis mutandis, Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21, § 48). 195. Having regard to the manner and conditions of appointment of the Netherlands Council of State ’ s members and their terms of office, and in the absence of any indication of a lack of sufficient and adequate safeguards against possible extraneous pressure, the Court has found nothing in the applicant ’ s submissions that could substantiate their concerns as to the independence of the Council of State and its members, the more so as this particular issue was not addressed in the challenge proceedings brought by Mr and Mrs Raymakers. Neither is there any indication in the present case that any member of the bench of the Administrative Jurisdiction Division was subjectively prejudiced or biased when hearing the applicants ’ appeals against the routing decision. In particular, it has not been alleged by the applicants that the participation of the President of the bench in the advisory opinion on the Transport Infrastructure Planning Bill gave rise to actual bias on his part. 196. Nevertheless, as illustrated in Procola (cited above), the consecutive exercise of advisory and judicial functions within one body may, in certain circumstances, raise an issue under Article 6 § 1 of the Convention as regards the impartiality of the body seen from the objective viewpoint. In this context the Court reiterates that it is crucial for tribunals to inspire trust and confidence (see paragraph 191 above). 197. The Government have brought to the Court ’ s attention the internal measures taken by the Council of State with a view to giving effect to Procola in the Netherlands (see paragraphs 142-45 above). According to the description of these measures which is to be found in the Annual Report 2000 of the Council of State, the composition of the bench will only be scrutinised if doubts are expressed by a party; the criterion then applied is that if the appeal goes to a matter explicitly addressed in a previous advisory opinion, the composition will be changed so as to exclude any judges who participated in that opinion. 198. The Court is not as confident as the government was in its statement during the parliamentary budget discussions in 2000 that these arrangements are such as to ensure that in all appeals coming before it the Administrative Jurisdiction Division constitutes an “impartial tribunal” for the purposes of Article 6 § 1 of the Convention. It is not, however, the task of the Court to rule in the abstract on the compatibility of the Netherlands system in this respect with the Convention. The issue before the Court is whether, as regards the appeals brought by the present applicants, it was compatible with the requirement of the “objective” impartiality of a tribunal under Article 6 § 1 that the Council of State ’ s institutional structure had allowed certain of its ordinary councillors to exercise both advisory and judicial functions. 199. In the present case the Plenary Council of State advised on the Transport Infrastructure Planning Bill, which laid down draft procedural rules for the decision-making process for the supra - regional planning of new major transport infrastructure. The applicants ’ appeals, however, were directed against the routing decision, which is a decision taken on the basis of the procedure provided for in the Transport Infrastructure Planning Act. Earlier appeals against the outline planning decision are not at issue as they were based on a different legal framework. 200. The Court is of the opinion that, unlike the situation examined by it in Procola and McGonnell, both cited above, the advisory opinions given on the Transport Infrastructure Planning Bill and the subsequent proceedings on the appeals brought against the routing decision cannot be regarded as involving “the same case” or “the same decision”. 201. Although the planning of the Betuweroute railway was referred to in the advice given by the Council of State to the government on the Transport Infrastructure Planning Bill, these references cannot reasonably be interpreted as expressing any views on, or amounting to a preliminary determination of, any issues subsequently decided by the responsible ministers in the routing decision at issue. The passages containing the references to the Betuweroute railway in the Council of State ’ s advice were concerned with removing perceived ambiguities in sections 24b and 24g of the Transport Infrastructure Planning Bill. These provisions were intended to apply to two major construction projects already under consideration at the relevant time, of which the Betuweroute railway was one. The Court cannot agree with the applicants that, by suggesting to the government to indicate in the bill the names of the places where the Betuweroute railway was to start and end, the Council of State determined, expressed any views on or in any way prejudged the exact routing of that railway. 202. In these circumstances, the Court is of the opinion that the applicants ’ fears as to a lack of independence and impartiality of the Administrative Jurisdiction Division, due to the composition of the bench that heard their appeals, cannot be regarded as being objectively justified. Consequently, there has been no violation of Article 6 § 1 of the Convention. | The Court held that there had been no violation of Article 6 § 1 of the Convention, finding that the applicants’ fears regarding the Administrative Jurisdiction Division’s lack of independence and impartiality could not be regarded as being objectively justified. The Court noted in particular that although the notion of the separation of powers between the political organs of government and the judiciary had assumed growing importance in the Court’s case-law, neither Article 6 nor any other provision of the Convention required States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction. The question was always whether, in a given case, the requirements of the Convention were met and the Court was faced solely with the question whether, in the circumstances of the case, the Administrative Jurisdiction Division had the requisite “appearance” of independence, or the requisite “objective” impartiality. |
533 | Death in police custody or in detention | II. RELEVANT DOMESTIC LAW 64. Pursuant to Article 166 (1) of the Code of Criminal Procedure, where the investigator considers the investigation into a case to be completed and where the results of such investigation justify the filing of an indictment, the investigator shall give the accused, the victim, as well as their counsels and/or authorised representatives sufficient time for perusing the case file and, if necessary, for proposing any additional investigation be carried out. 65. Article 224(1) and (2) of the Criminal Code provides that a person who by negligence and in violation of his or her duties causes a serious injury to health or the death of another person shall be punished with a prison sentence of between six months and five years or with a fine. 66. Under Article 314e (1) of the Code of Criminal Procedure, a single judge may issue a criminal order, without a public hearing, where the facts are reliably proved by the evidence submitted. 67. Pursuant to Article 314g (1) and (3) of the Code of Criminal Procedure, a penal order may only be challenged by the public prosecutor, the accused person or those who can file an appeal in the latter's favour. Where such an objection is filed, the judge shall hold a hearing in the case. 68. Article 314g (2) provides that a third party who joins the criminal proceedings with a claim for damages can file an objection to a penal order only in case and to the extent that compensation is thereby granted. When a third party files such an objection, the judge shall quash the relevant part of the penal order and refer the person concerned to proceedings before a civil court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 69. The applicant complained that the death of her husband in police custody and the subsequent failure of the Slovakian authorities to undertake a thorough and effective investigation into the circumstances surrounding his death amounted to a violation of Article 2 of the Convention, which provides as follows: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” The parties'submissions 70. The applicant submitted first, that her husband was deprived of his right to life as a result of his intentional shooting in police custody, and secondly, that the State authorities failed adequately to protect his right to life by undertaking a through and effective investigation into the circumstances surrounding his death. 71. In relation to the first submission, she relied on the principle, established by the Court, that where an individual is taken into police custody in good health but is later found dead, it is incumbent on the State to provide a plausible explanation of the events leading to his death, failing which the authorities must be held responsible under Article 2 of the Convention ( Velikova v. Bulgaria, no. 41488/98, § 70, ECHR 2000 ‑ VI). Moreover, where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting with the authorities to provide a satisfactory and convincing explanation ( Hugh Jordan v. the United Kingdom, no. 24746/94, § 103, ECHR 2001 ‑ III (extracts) ). 72. In the present case, Mr Šarišský was taken into custody in good health. It was not disputed that he received his injuries, including the fatal wound, in police custody. While in hospital he repeatedly told the applicant and other relatives that he did not shoot himself, and their testimonies unequivocally stated that he had never owned or used a gun. In the circumstances, the applicant submitted that the investigating authorities did not fulfil their obligation to provide a plausible explanation for his death. Rather, they continued to rely on a highly implausible theory which did not withstand scrutiny: namely, that Mr Šarišský had forcibly taken the gun from Lt. F. and shot himself. 73. The applicant further contended that the investigation conducted by the authorities was plagued by omissions and inconsistencies and, consequently, the State had failed to undertake a thorough and effective investigation into her husband's death. In particular, she argued that it was unacceptable that the forensic technician was not equipped with lifting pads for conducting a gun residue test when tasked with securing a crime scene involving bodily injury caused by a firearm. However, she contended that pivotal evidence could still have been secured had Lt. F.'s hands been bagged until the appropriate gunpowder residue tests were taken. 74. She submitted that the investigators failed properly to secure fingerprint tests; that police officers were never asked to explain how and when her husband received the serious injuries on his face and left ear; that the prosecution gave full credit to the testimony by the police officers involved in the incident, flatly denying the use of force against the victim; that the investigation failed to resolve the differences in the testimony of police officers regarding the position the victim was found in after the shooting; and finally, that there was a failure to resolve the apparent contradictions in the testimonies given by Lt. F. 75. The Government submitted that the theory that Mr Šarišský committed suicide was not highly implausible. In particular, they submitted that on 17 August 1999 an autopsy was ordered to determine the manner of death, the angle and range of the handgun with which the victim was shot, and any other facts or circumstances relevant to the finding of an objective explanation for the death. On 20 August 1999 a forensic analysis of fingerprints, biological and chemical samples and a handwritten note was commissioned. This was followed by a reconstruction on 8 September 1999 to clarify the circumstances leading to the death of Mr Šarišský. Although the testimony of Lt. F. was considered during the reconstruction, it relied primarily on the objective evidence such as the position of the entry and exit wounds and the gunshot damage to the chair. Following the reconstruction the investigators concluded that in all probability Mr Šarišský had shot himself. The investigations conducted, and the evidence that Mr Šarišský previously had been aggressive and attempted to self-harm while in police custody, refuted the applicant's allegation that suicide was a highly implausible theory and that the investigators had relied uncritically on the testimony of Lt. F. 76. With regard to the adequacy of the investigation, the Government submitted that a task-force from the District Criminal Police Department in Poprad was dispatched to the scene immediately after the shooting of the applicant's husband. They inspected the scene and a forensic technician secured the evidence. The forensic technician did not take samples of gunpowder residue from the hands of Lt. F. because he did not have lifting pads to secure such evidence. The Government contended that at that time lifting pads were not standard issue for criminal investigators. In any case, the applicant's husband was not at the crime scene when the forensic technician arrived as he had already been transported to hospital. The Government could not be held responsible for the fact that hospital staff washed his hands on admission. Moreover, although Lt. F.'s hands were not bagged, the Government submitted that he remained under the constant supervision of a police guard until samples of gunpowder residue were taken the following day by an expert technician from the Košice Institute of Forensic Science. 77. The Government further submitted that the firearm was confiscated immediately for the purpose of conducting forensic tests but no classifiable or identifiable fingerprints could be lifted from it. In addition, following the death and autopsy of the applicant's husband, additional experts were appointed to inspect biological, chemical, graphological, mechanical, fingerprint and ballistic traces. Reconstructions and experiments were carried out to clarify the incident and potential witnesses were interrogated. 78. The Government denied that there had been any contradictions in the testimonies of the police officers. Indeed, any discrepancy in the police officers'statements could be accounted for by the exclusion of the words “right side” from the English translation. 79. The Government also denied that the investigators had relied exclusively and uncritically on the testimony of Lt. F. and had never sought to explore an alternative explanation for the fatal injuries sustained by the applicant's husband. The investigators collected all accessible evidence in order to verify the testimonies of Lt. F. and the other witnesses; reconstructions were carried out to investigate various possible alternatives and the authorities concluded, on the basis of the available evidence, that Mr Šarišský's injuries were self-inflicted. The injuries to Mr Šarišský's face and left ear were considered irrelevant as they had no relation to the cause of death. 80. Finally, the Government submitted that the applicant had access to the investigation. Under domestic law, it was open to her to make motions concerning evidence-taking or submission of supplementary evidence, comment on all evidence taken and consult and review the case file. Her representative participated in parts of the criminal proceedings and raised no objection to their conduct. Furthermore, the applicant was entitled to make motions for further investigation. 81. The Government therefore argued that there was an effective, impartial, thorough and careful investigation into the death of Mr Šarišský which led to the person responsible, Lt. F., being identified and punished. B. The Court's assessment I. The death of Mr Šarišský (a) General principles 82. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. The circumstances in which the deprivation of life may be justified must therefore be strictly construed. Moreover, the object and purpose of the Convention as an instrument for the protection of individuals also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective ( McCann and Others v. the United Kingdom, 27 September 1995, §§ 146 – 147, Series A no. 324). 83. In light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also the surrounding circumstances. 84. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” ( Avsar v Turkey, no. 25657/94, § 282, ECHR 2001). Such proof may, however, follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact ( Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation ( Salman v. Turkey [ GC], no. 21986/93, § 99, ECHR 2000 ‑ VII). 85. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, for example, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V) and to produce evidence casting doubt on the veracity of the victim's allegations, particularly if those allegations are backed up by medical reports ( Abdülsamet Yaman v. Turkey, no. 32446/96, § 43, 2 November 2004). The authorities'obligation to account for an individual in custody is particularly stringent where that individual dies (Salman v. Turkey, cited above, at § 99; Keenan v. the United Kingdom, no. 27229/95, § 91, ECHR 2001 ‑ III). 86. Moreover, in addition to the obligation on States to account for injuries or deaths in police custody, the Court recalls that the State is also under a positive obligation to take all reasonable measures to ensure that the health and well-being of persons in detention are adequately secured by, among other things, providing them with the requisite medical assistance (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq., and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI) and taking reasonable measures to minimise a known suicide risk ( Keenan v. the United Kingdom, no. 27229/95, § 97, ECHR 2001 ‑ III). (b) Application to the present case 87. Mr Šarišský was twenty-one years old and in good health when he was taken into custody at approximately 8 p. m. on 12 August 1999. Several hours later he was rushed to hospital with a gunshot wound to his abdomen and injuries to his neck, right shoulder, face and ear. The fatal shot was fired from Lt. F.'s police service pistol while Mr Šarišský was alone with Lt. F. in his office. Mr Šarišský and Lt. F. clearly had previous dealings with each other (see, for example, paragraph 11), and the evidence would suggest that Lt. F. volunteered to interrogate Mr Šarišský while he was off duty, without first obtaining the permission of his commanding officer. 88. In the course of the investigation into his death, at least three accounts were given of how Mr Šarišský was shot. Lt. F. indicated that Mr Šarišský had taken his gun and shot himself. Mr Šarišský allegedly told the investigator that Lt. F. had given him the gun and he had shot himself. The applicant, on the other hand, submitted that her husband told her that Lt. F. had shot him. In carrying out the reconstruction on 8 September 1999, the ballistics experts concluded that Mr Šarišský “most probably” shot himself. Further reconstructions were carried out to determine how Mr Šarišský was able to forcibly remove Lt. F.'s service pistol. No attempt appears to have been made, however, to investigate the allegation made by Mr Šarišský himself, namely that Lt. F. gave him the firearm. Moreover, the Court also observes that no explanation was given for the inconsistencies in the different statements provided by Lt. F. in the course of the domestic proceedings. 89. Consequently, the Court has grave concerns both about the circumstances surrounding Mr Šarišský's death and the extent to which the authorities have provided “a satisfactory and convincing explanation” (see Salman v. Turkey, cited above, § 99). The inherent improbability of the theory that, while in police custody and while temporarily left alone during his interrogation by Lt. F, Mr. Šarišský would compose a suicide note and on Lt.F's return seize his pistol from his belt and use it to shoot himself in the abdomen gives serious cause to doubt that the authorities have discharged the burden imposed on them under the Convention. However, the Court does not consider that it is necessary to reach any final determination of this issue. Even if the Court were to accept that Mr Šarišský committed suicide as alleged, it notes that the obligation to protect the health and well-being of persons in detention clearly encompasses an obligation to take reasonable measures to protect them from harming themselves ( Keenan v. the United Kingdom, cited above, § 97). Although there is insufficient evidence to enable the Court to find that the authorities either knew or ought to have known that Mr Šarišský was a suicide risk on the night of his death, the Court notes that there are certain basic precautions which police officers and prison officers should be expected to take in all cases in order to minimise any potential risk. First, the Court would observe that compelling reasons must be given as to why the interrogation of a suspect is entrusted to an armed police officer. For the Court, the facts of the present case disclose no justification whatsoever for allowing Lt. F. to remain in possession of his firearm during the interrogation of Mr Šarišský, a young man who had been arrested on suspicion of bicycle theft. Secondly, at the time of Mr Šarišský's death there were regulations in force which required police officers to secure their service weapons in order to avoid any “undesired consequences”. The domestic courts held that Lt. F's failure properly to secure his service weapon amounted to negligence which resulted in the death of Mr Šarišský. Consequently, the Court finds that even if Mr Šarišský committed suicide in the manner described by the Government and the investigative authorities, the authorities were in violation of their obligation to take reasonable measures to protect his health and well-being while he was in police custody. 90. There has accordingly been a violation of Article 2 of the Convention under its substantive limb. The adequacy of the investigation (a) General principles 91. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. Whatever mode is employed, however, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII). 92. For an investigation into an alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 325, ECHR 2007 ‑ ..., Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, p. 1733, §§ 81-82, and Oğur v. Turkey [GC], no. 21954/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998 ‑ IV, pp. 1778-79, §§ 83-84, and the Northern Irish judgments, for example, Hugh Jordan v. the United Kingdom, no. 24746/94, § 120, and Kelly and Others v. the United Kingdom, no. 30054/96, § 114, both of 4 May 2001 ). 93. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy providing a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, for example, Salman, cited above, § 106; Tanrıkulu v. Turkey [GC], no. 23763/94, § 1 09, ECHR 1999-IV; and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard (see the Northern Irish judgments concerning the inability of inquests to compel the security-force witnesses directly involved in the use of lethal force, for example, Hugh Jordan, cited above, § 127). 94. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, pp. 2439-40, §§ 102-04; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87 and 106, ECHR 1999-IV; Tanrıkulu, cited above, § 109; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07, ECHR 2000-III). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, for example, Hugh Jordan, cited above, §§ 108 and 136-40). 95. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç, cited above, p. 1733, § 82; Oğur, cited above, § 92; Gül, cited above, § 93; and the Northern Irish judgments, for example, McKerr v. the United Kingdom, no. 28 883/95, § 148, ECHR 2001 ‑ III). (b) Application to the present case 96. The Court observes that following the shooting of Mr Šarišský, Lt. F. immediately called for the emergency services. An investigation task-force was formed and called promptly to the police station to inspect the scene of the shooting. The inspection began at 11.50 p.m., very shortly after the incident. 97. Nevertheless, the Court finds that there were a number of deficiencies in the criminal investigation which undermined its ability to establish who was responsible for Mr Šarišský's death. (i) Independence of the police investigation 98. The criminal investigation was supervised by police officers from the Department of Supervision and Inspection at the Ministry of the Interior. The Court observes that these police officers were under the command of the Ministry of the Interior. Even if the Court were to assume that these officers were sufficiently independent for the purposes of Article 2 of the Convention, it is concerned that they did not commence their investigation until 13 August 1999, when an officer interviewed the wounded Mr Šarišský in hospital. The task-force that was formed immediately after the shooting was comprised of police officers from Poprad, which was the district in which Lt. F. was based. It was these officers who conducted the initial forensic examination of the scene. Moreover, after the Department of Supervision and Inspection took over, officers from Poprad continued to be involved in the investigation. In particular, it is clear from the record of the reconstruction conducted on 4 May 2000 that the technicians carrying out the experiments were from the Criminal Police Department in Poprad, which was Lt. F.'s department. Further investigations were also carried out by the Regional Investigation Office in Prešov. 99. The Court recalls the extremely high standard established by the Grand Chamber in Ramsahai v the Netherlands (cited above, §§ 333 -341). Whilst the Court acknowledges that the local police cannot remain passive until independent investigators arrive, in Ramsahai v the Netherlands the Grand Chamber indicated that in the absence of any special circumstances, immediate action by local police should not go beyond securing the area in question. In the present case, the task-force examined the crime scene, photo-documented it and recovered fingerprints and ballistic, biological and material evidence. They did not, however, have the necessary technical equipment to test Lt. F.'s hands for gunshot residue, and instead permitted him to return home, although they submitted that he remained under the constant supervision of a police guard. No further details have been provided concerning the identity of this guard or the extent of the supervision. However, as police officers from the Department of Supervision and Inspection at the Ministry of the Interior did not arrive until the following day, it must be assumed that the guard was also from Lt. F.'s department in Poprad. 100. The Court is also concerned about the continued involvement of technicians from Lt. F.'s department in Poprad in the investigation, most notably during the reconstruction carried out on 4 May 2000. Their involvement diminished the investigation's appearance of independence and this could not be remedied by the subsequent involvement of the Department of Supervision and Inspection. The Court therefore finds that the investigation was not sufficiently independent. ( iii ) Adequacy of the investigation 101. Moreover, the Court finds that the failure of the investigators to give serious consideration to Mr Šarišský's claim that he shot himself after Lt. F. handed him the gun amounted to a serious deficiency in the Šarišský's death. The allegation that Lt. F. voluntarily gave Mr Šarišský his gun amounts to a much more serious allegation against Lt. F than that of causing injury to health by negligence, and yet the investigators do not appear to have considered it, preferring instead to rely on Lt. F.'s claim that Mr Šarišský forcibly took the weapon from him. 102. The Court further observes that in a case such as the present, where there were no independent eyewitnesses to the incident, the taking of forensic samples was of critical importance in establishing who was responsible for Mr Šarišský's death ( Ramsahai v the Netherlands, cited above, § 331). If the investigators had brought the necessary equipment to the police station, samples of gunpowder residue could have been taken from Lt. F.'s hands in the immediate aftermath of the shooting. If such samples had been taken, it might have been possible either to exclude or confirm that he pulled the trigger. Instead, samples were not taken until the following day. Although the Government submitted that Lt. F. remained under the supervision of a police guard until the samples were taken, the Court has concerns about the independence of the guard, who was most likely a police officer from Lt. F.'s department (see paragraph 98). Consequently, the result of the gunpowder residue test cannot be relied on. Although a ballistics test later confirmed that Mr Šarišský “most probably” shot himself, if conducted properly the gunpowder residue test could have been conclusive. Thus, there was a failure by the investigators to take reasonable steps to secure evidence concerning the incident which in turn undermined the ability of the investigation to determine beyond any doubt who was responsible for Mr Šarišský's death. 103. Finally, the Court observes that very little attention appears to have been paid to the applicant's claim that her husband had injuries to his face, shoulder and ear, even after the autopsy confirmed the presence of these injuries. The Government have subsequently indicated that these injuries were ignored because they were not relevant to determining the cause of death. They were, however, relevant to determining whether Mr Šarišský was ill-treated by police officers either during his arrest or in police custody, which in turn is relevant both to an investigation into a potential violation of Article 2 of the Convention and to a separate allegation under Article 3. The Court therefore finds that the failure to investigate the applicant's claim that her husband was ill-treated by police officers prior to the shooting amounted to a serious shortcoming in the criminal investigation and prevented the authorities from obtaining a clear and accurate picture of the events leading to Mr Šarišský's death. 104. In light of the above, the Court concludes that no meaningful investigation was conducted at the domestic level capable of establishing the true facts surrounding the death of Mr Šarišský. It follows that there has also been a violation of the procedural limb of Article 2 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 105. The applicant complained under Article 3 of the Convention that her husband was ill-treated in police custody and that the authorities failed to carry out an adequate investigation into that ill-treatment. Article 3 of the Convention provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 106. Having considered the applicant's complaints under Article 2 of the Convention, the Court finds that it is not necessary to make a separate finding under Article 3. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 107. The applicant complained that she had not had an effective remedy for her complaints under Articles 2 and 3 within the meaning of Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 108. First, the applicant submitted that the authorities failed to carry out a competent and thorough investigation of the violation of Article 2, which constituted a separate and independent violation of her right to an effective remedy. 109. Secondly, the applicant submitted that under Slovak law no effective remedy existed in the event that the prosecution and investigation authorities did not fulfil their responsibility to carry out a thorough and effective investigation of alleged violations of rights protected by the Convention. She further submitted that civil damages did not amount to an effective remedy where there had been a death at the hands of State agents (see, for example, Aksoy v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI). 110. The Court notes that, despite her claim that civil damages could not be regarded as an effective remedy where a death had occurred at the hands of State agents, the applicant instituted civil proceedings which were discounted on the grounds of the procedural shortcomings in her pleadings. The Court finds that the essence of the applicant's complaints under Article 13 relates to the alleged inadequacy of the investigation which took place and the absence of any remedy to ensure there was an effective investigation into her husband's death such as to enable her effectively to pursue a civil action for damages arising out of the death. As such, the Court considers that the complaints under Article 13 are a restatement of the applicant's complaints under Article 2. It does not, therefore, consider it necessary to make a separate finding under Article 13 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 111. The applicant complained that her rights, and the rights of her deceased husband, under Articles 2, 3 and 13 of the Convention were violated in conjunction with Article 14 on grounds of ethnic origin. Article 14 of the Convention provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties'submissions 112. The applicant submitted that her husband's death was caused by an agent of the State and the investigation which followed was plagued by severe deficiencies and discrepancies and, as a result, it failed to establish the cause of his death. She submitted that the fact that her husband was a Romani man, coupled with the legacy of widespread and systematic abuse of Roma in police custody, created an obligation on the State to investigate a possible racist motive behind his death. The State failed to do so in violation of their procedural obligations under Article 14 of the Convention. 113. The Government contested that argument. They submitted that there was no evidence to suggest that in the present case Mr Šarišský was subjected to significantly harsher treatment by the police on account of his Roma ethnicity. B. The Court's assessment 1. Substantive aspect 114. Discrimination is treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). Discrimination on account of, inter alia, a person's ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of enrichment ( Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-...; and Timishev v. Russia, nos. 55762/00 and 5597 4/00, § 56, ECHR 2005-...). The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures ( Timishev, cited above, § 58). 115. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see, among other authorities, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999-III; and Timishev, cited above, § 57). 116. As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State, the Court stated in Nachova and Others v. Bulgaria that in proceedings before it there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties'submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. 117. Turning to the facts of the present case, the Court considers that whilst Lt. F.'s conduct during the applicant's detention calls for serious criticism, that behaviour is of itself an insufficient basis for concluding that his conduct was racially motivated. Further, in so far as the applicant has relied on general information about police abuse of Roma in Slovakia, the Court cannot lose sight of the fact that its sole concern is to ascertain whether in the case at hand the treatment inflicted on the applicants was motivated by racism (see Nachova and Others v. Bulgaria, cited above, § 155). Lastly, the Court does not consider that the failure of the authorities to carry out an effective investigation into the alleged racist motive for the incident should shift the burden of proof to the respondent Government with regard to the alleged violation of Article 14 in conjunction with the substantive aspect of Article 2 of the Convention. The question of the authorities'compliance with their procedural obligation under Article 14 is a separate issue, to which the Court will revert below (see Nachova and Others v. Bulgaria, cited above, § 157). 118. Consequently, the Court finds that there has been no violation of Article 14 of the Convention taken in conjunction with Article 2 in its substantive aspect. 2. Procedural aspect 119. The Court has held that when investigating violent incidents and, in particular, deaths at the hands of State agents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see, mutatis mutandis, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). In order to maintain public confidence in their law enforcement machinery, Contracting States must ensure that in the investigation of incidents involving the use of force a distinction is made both in their legal systems and in practice between cases of excessive use of force and of racist killing ( Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 146, ECHR 2005 ‑ VII ). 120. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute (see, mutatis mutandis, Shanaghan v. the United Kingdom, no. 37715/97, § 90, ECHR 2001-III, setting out the same standard with regard to the general obligation to investigate). The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of a racially induced violence. 121. In the present case, the Court has already found that the Slovakian authorities violated Article 2 of the Convention in that they failed to conduct a meaningful investigation into the death of Mr Šarišský (see paragraphs 94 –103 above). It therefore considers that it must examine separately the complaint that there was also a failure to investigate a possible causal link between alleged racist attitudes and his death. 122. The Court notes with concern the contemporaneous reports documented at paragraphs 57 et seq. above which relate to allegations of police brutality towards Roma in Slovakia. In respect of persons of Roma origin, it would not exclude the possibility that in a particular case the existence of independent evidence of a systemic problem could, in the absence of any other evidence, be sufficient to alert the authorities to the possible existence of a racist motive. However, in the present case the Court is not persuaded that the objective evidence is sufficiently strong in itself to suggest the existence of such a motive. It also notes that, unlike the situation obtaining in Nachova and Others v. Bulgaria, the authorities did not have before them any concrete information capable of suggesting that there had been any racial motive behind the applicant's arrest, detention, or, ultimately, his death ( Vasil Sashov Petrov v. Bulgaria, no. 63106/00, § 72, 10 June 2010 ). Moreover, there is no indication that the applicant made allegations of racial bias at any point during the investigation (compare with Karagiannopoulos v. Greece, no. 27850/03, § 78, 21 June 2007; Turan Cakir v. Belgium, no. 44256/06, § 80, 10 March 2009; Beganović v. Croatia, no. 46423/06, § 97, ECHR 2009 ‑ ... (extracts); and Sashov and Others v. Bulgaria, no. 14383/03, § 84, 7 January 2010 ). 123. For these reasons, the Court does not consider that the authorities had before them information that was sufficient to bring into play their obligation to investigate possible racist motives on the part of the officers. It follows that there has been no violation of Article 14 of the Convention taken in conjunction with Article 2 in that respect. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 124. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 125. The applicant claimed 45,000 euros (EUR) in respect of non-pecuniary damages : EUR 30,000 in respect of the victim's suffering and EUR 15,000 in her personal capacity. The applicant contended that her claims were in line with the standards set by the Court in the cases of Akkoç v. Turkey, nos. 22947/93 and 22948/93, ECHR 2000 ‑ X and Nachova and Others v. Bulgaria (cited above). 126. The applicant also claimed EUR 289,225 in respect of pecuniary damages. She submitted that although her husband was unemployed at the time of his death, he was young and in good health and therefore could have secured employment. She submitted that his death had impacted her financial situation and would continue to do so for the forty-one remaining years during which her husband would have been able to secure wages from employment. The claim for EUR 289,225 therefore represented past, present and future wage loss based on the age of death of the victim until the official retirement age in Slovakia (62 years). 127. The Government contended that the applicant's claim for non-pecuniary damage was manifestly overstated. 128. The Government submitted that the applicant's claim for lost earnings was unfounded as her husband was unemployed at the date of his death. Moreover, they submitted that the applicant had the opportunity to claim for pecuniary loss during the criminal proceedings against Lt. F. and/or in civil proceedings but her claims were struck out due to procedural irregularities. 129. In respect of the applicant's claim for non-pecuniary damage, the Court recalls that it has found a violation of Article 2 of the Convention. It has also found that the authorities failed to provide the applicant with an effective remedy, contrary to Article 13. In the circumstances, having regard to awards made in comparable cases, the Court awards the applicant the full amount claimed. 130. In respect of the applicant's claim for pecuniary loss, the Court observes that she has not submitted any details of her late husband's previous employment record or, as she has since remarried, of her current husband's employment situation. It is therefore impossible for the Court properly to assess the financial impact of her husband's death. Consequently, the Court finds that the applicant has not substantiated her claim for pecuniary loss. B. Costs and expenses 131. The applicant claims EUR 10,962 in respect of legal costs and expenses. 132. The Government submit that this claim is unreasonably high. 133. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicants the sum of EUR 8,000 for the proceedings before the Court. C. Default interest 134. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention, finding that, even if he had committed suicide as alleged by the investigative authorities, they had been in violation of their obligation to take reasonable measures to protect his health and well-being while in police custody. It also found a violation of Article 2 under its procedural limb, as no meaningful investigation had been conducted at the domestic level capable of establishing the true facts surrounding the death of the applicant’s husband. The Court further held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 2. It was in particular not persuaded that the objective evidence had been sufficiently strong in itself to suggest the existence of a racist motive for the incident. |
589 | Other applications of interim measures | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Public Health Code 52. Under Article L. 1110 ‑ 1 of the Public Health Code (“the Code”), all available means must be used to secure to each individual the fundamental right to protection of health. Article L. 1110 ‑ 2 of the Code provides that the patient has the right to respect for his or her dignity, while Article L. 1110 ‑ 9 guarantees to everyone whose condition requires it the right to palliative care. This is defined in Article L. 1110 ‑ 10 as active and ongoing care intended to relieve pain, ease psychological suffering, preserve the patient ’ s dignity and support those close to him or her. 53. The Law of 22 April 2005 on patients ’ rights and end ‑ of ‑ life issues, known as the “ Leonetti Act ” after its rapporteur, Mr Jean Leonetti (see paragraph 44 above), amended a number of Articles of the Code. The Act was passed following the work of a parliamentary commission chaired by Mr Leonetti and tasked with exploring the full range of end ‑ of ‑ life issues and considering possible legislative or regulatory amendments. In the course of its work the parliamentary commission heard evidence from a great many individuals. It submitted its report on 30 June 2004. The Act was passed unanimously by the National Assembly on 30 November 2004 and by the Senate on 12 April 2005. The Act does not authorise either euthanasia or assisted suicide. It allows doctors, in accordance with a prescribed procedure, to discontinue treatment only if continuing it would demonstrate unreasonable obstinacy (in other words, if it would mean taking it to unreasonable lengths ( acharnement thérapeutique ) ). The relevant Articles of the Code, as amended by the Act, read as follows. Article L. 1110-5 “Every individual, regard being had to his or her state of health and the urgency of the treatment required, shall be entitled to receive the most appropriate care and to be given the safest treatment known to medical science at the time to be effective. Preventive or exploratory acts or care must not, as far as medical science can guarantee, subject the patient to disproportionate risks in relation to the anticipated benefits. Such acts must not be continued with unreasonable obstinacy. Where they appear to be futile or disproportionate or to have no other effect than to sustain life artificially, they may be discontinued or withheld. In such cases, the doctor shall preserve the dignity of the dying patient and ensure his or her quality of life by dispensing the care referred to in Article L. 1110-10 ... Everyone shall be entitled to receive care intended to relieve pain. That pain must in all cases be prevented, assessed, taken into account and treated. Health - care professionals shall take all the measures available to them to allow each individual to live a life of dignity until his or her death ... ” Article L. 1111-4 “Each individual shall, together with the health - care professional and in the light of the information provided and the recommendations made by the latter, take the decisions concerning his or her own health. The doctor must respect the individual ’ s wishes after informing him or her of the consequences of the choices made ... No medical act or treatment may be administered without the free and informed consent of the patient, which may be withdrawn at any time. Where the individual is unable to express his or her wishes, no intervention or examination may be carried out, except in cases of urgency or impossibility, without the person of trust referred to in Article L. 1111-6, the family or, failing this, a person close to the patient having been consulted. Where the individual is unable to express his or her wishes, no decision to limit or withdraw treatment, where such a measure would endanger the patient ’ s life, may be taken without the collective procedure defined in the Code of Medical Ethics having been followed and without the person of trust referred to in Article L. 1111-6, the family or, failing this, a person close to the patient having been consulted, and without any advance directives issued by the patient having been examined. The decision to limit or withdraw treatment, together with the reasons for it, shall be recorded in the patient ’ s file ... ” Article L. 1111-6 “ All adults may designate a person of trust, who may be a relative, another person close to the adult, or his or her usual doctor, and who will be consulted in the event that the patient is unable to express his or her wishes and to receive the necessary information for that purpose. The designation shall be made in writing and may be revoked at any time. Should the patient so wish, the person of trust may provide support and attend medical consultations with the patient in order to assist him or her in making decisions. Whenever he or she is admitted to a health - care establishment, the patient shall be offered the possibility of designating a person of trust in the conditions laid down in the preceding paragraph. The designation shall be valid for the duration of the patient ’ s hospitalisation, unless he or she decides otherwise ... ” Article L. 1111-11 “ All adults may draw up advance directives in case they should become unable to express their wishes. These shall indicate the wishes of the individual concerned as regards the conditions in which treatment may be limited or withdrawn in an end ‑ of ‑ life situation. They may be revoked at any time. Provided they were drawn up less than three years before the individual became unconscious, the doctor shall take them into account in any decision to carry out examinations, interventions or treatment in respect of the person concerned ... ” 54. The collective procedure provided for in the fifth paragraph of Article L. 1111 ‑ 4 of the Code is described in detail in Article R. 4127 ‑ 37, which forms part of the Code of Medical Ethics and reads as follows: “I. The doctor shall at all times endeavour to alleviate suffering by the means most appropriate to the patient ’ s condition, and provide moral support. He or she shall refrain from any unreasonable obstinacy in carrying out examinations or treatment and may decide to withhold or discontinue treatment which appears futile or disproportionate or the only purpose or effect of which is to sustain life artificially. IV. COMPARATIVE LAW A. Legislation and practice in Council of Europe member States 72. According to the information available to the Court concerning thirty-nine of the forty-seven Council of Europe member States, no consensus exists in practice in favour of authorising the withdrawal of treatment designed only to prolong life artificially. In the majority of countries, treatment may be withdrawn subject to certain conditions. In other countries the legislation prohibits withdrawal or is silent on the subject. 73. In those countries which permit it, this possibility is provided for either in legislation or in non-binding instruments, most often in a code of medical ethics. In Italy, in the absence of a legal framework, the withdrawal of treatment has been recognised in the courts ’ case-law. 74. Although the detailed arrangements for the withdrawal of treatment vary from one country to another, there is consensus as to the paramount importance of the patient ’ s wishes in the decision-making process. As the principle of consent to medical care is one of the aspects of the right to respect for private life, States have put in place different procedures to ensure that consent is expressed or to verify its existence. 75. All the legislation allowing treatment to be withdrawn makes provision for patients to issue advance directives. In the absence of such directives, the decision lies with a third party, whether it be the doctor treating the patient, persons close to the patient or his or her legal representative, or even the courts. In all cases, the involvement of those close to the patient is possible, although the legislation does not choose between them in the event of disagreement. However, some countries operate a hierarchy among persons close to the patient and give priority to the spouse ’ s wishes. 76. In addition to the requirement to seek the patient ’ s consent, the withdrawal of treatment is also subject to other conditions. Depending on the country, the patient must be dying or be suffering from a condition with serious and irreversible medical consequences, the treatment must no longer be in the patient ’ s best interests, it must be futile, or withdrawal must be preceded by an observation phase of sufficient duration and by a review of the patient ’ s condition. B. Observations of the Human Rights Clinic 77. The Human Rights Clinic, third-party intervener ( see paragraph 8 above ), presented an overview of national legislation and practice concerning active and passive euthanasia and assisted suicide in Europe and America. 78. The survey concludes that no consensus currently exists among the member States of the Council of Europe, or in the other countries surveyed, regarding the authorisation of assisted suicide or euthanasia. 79. However, there is consensus on the need for passive euthanasia to be tightly regulated in those countries which permit it. In that connection each country lays down criteria in its legislation for determining the point at which euthanasia may be performed, in the light of the patient ’ s condition and in order to make sure that he or she has consented to the measure. Nevertheless, these criteria vary appreciably from one country to another. THE LAW I. STANDING TO ACT IN THE NAME AND ON BEHALF OF VINCENT LAMBERT 80. The applicants submitted that the withdrawal of Vincent Lambert ’ s artificial nutrition and hydration would be in breach of the State ’ s obligations under Article 2 of the Convention. In their view, depriving him of nutrition and hydration would constitute ill-treatment amounting to torture within the meaning of Article 3 of the Convention. They further argued that the lack of physiotherapy since October 2012 and the lack of therapy to restore the swallowing reflex amounted to inhuman and degrading treatment in breach of that provision. Lastly, they submitted that the withdrawal of nutrition and hydration would also infringe Vincent Lambert ’ s physical integrity, in breach of Article 8 of the Convention. 81. Articles 2, 3 and 8 of the Convention read as follows. Article 2 “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally ... ” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The applicants ’ standing to act in the name and on behalf of Vincent Lambert 1. The parties ’ submissions (a) The Government 82. The Government observed that the applicants had not stated that they wished to act on Vincent Lambert ’ s behalf, and considered the question whether they could apply to the Court on his behalf to be devoid of purpose. ( b) The applicants 83. The applicants submitted that any individual, irrespective of his or her disability, should be able to benefit from the guarantees afforded by the Convention, including where he or she had no representative. They stressed that their standing or interest in bringing proceedings had never been challenged before the domestic courts, as French law gave the family of a person whose treatment it was proposed to withdraw the right to express a view on the measure in question. This necessarily entailed standing to act in court proceedings not only on their own behalf but also on behalf of the patient. 84. Citing the criteria established by the Court in Koch v. Germany (no. 497/09, §§ 43 et seq., 19 July 2012), the applicants submitted that those criteria were satisfied in the present case because the case concerned a matter of general interest and because of their close family ties and their personal interest in the proceedings. They stressed that they had applied to the domestic courts and then to the Court in order to assert Vincent Lambert ’ s fundamental rights under Articles 2 and 3 which he himself was unable to do and which his wife could not either since she had accepted the medical decision in issue. ( c) The individual third-party interveners 85. Rachel Lambert, Vincent Lambert ’ s wife, submitted that the applicants did not have standing to act on behalf of Vincent Lambert. She pointed out that the Court had been prepared to recognise the standing of a relative either when the complaints raised an issue of general interest pertaining to “respect for human rights” and the person concerned, as heir, had a legitimate interest in pursuing the application, or on the basis of the direct effect on the applicant ’ s own rights. However, in Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000 ‑ XI), the Court had found that the rights asserted by the applicant under Articles 2, 3, 5 and 8 of the Convention belonged to the category of non ‑ transferable rights and had held that the applicant, who was the sister-in-law and legitimate heir of the deceased, could not claim to be the victim of a violation on her late brother ‑ in ‑ law ’ s behalf. 86. On the issue of representation, she observed that it was essential for representatives to demonstrate that they had received specific and explicit instructions from the alleged victim. This was not the case of the applicants, who had received no specific and explicit instructions from Vincent Lambert, whereas the examination of the case by the Conseil d ’ État had highlighted the fact that she herself had been taken into her husband ’ s confidence and informed of his wishes, as corroborated by statements produced before the domestic courts. 87. François Lambert and Marie ‑ Geneviève Lambert, Vincent Lambert ’ s nephew and half ‑ sister, submitted that the applicants lacked standing to act on his behalf. Firstly, the violations of Articles 2, 3 and 8 of the Convention alleged by the applicants concerned non ‑ transferable rights to which they could not lay claim on their own behalf; secondly, the applicants were not the legal representatives of Vincent Lambert, who was an adult born in 1976; and, thirdly, their application contravened Vincent Lambert ’ s freedom of conscience and his own right to life and infringed his privacy. François Lambert and Marie ‑ Geneviève Lambert observed that, although the Court had, by way of an exception, accepted that parents might act on behalf and in the place of a victim in arguing a breach of Article 3 of the Convention, this was only in the case of the victim ’ s disappearance or death and in certain specific circumstances. Those conditions were not met in the present case, making the application inadmissible. They argued that the Court had had occasion to reaffirm this inadmissibility in end-of-life cases similar to the present one (they referred to Sanles Sanles, cited above, and Ada Rossi and Others v. Italy (dec.), nos. 55185/08, 55483/08, 55516/08, 55519/08, 56010/08, 56278/08 and 58424/08, 16 December 2008). 88. Lastly, they argued that the applicants could not in fact “legitimately” challenge the Conseil d ’ État ’ s judgment, since the position they defended was directly opposed to Vincent Lambert ’ s beliefs. The doctors and the judges had taken account of the latter ’ s wishes, which he had confided to his wife – with whom he had had a very close relationship – in full knowledge of the facts, in view of his professional experience as a nurse. 2. The Court ’ s assessment ( a) Recapitulation of the principles 89. In the recent cases of Nencheva and Others v. Bulgaria ( no. 48609/06, 18 June 2013) and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ( [GC], no. 47848/08, ECHR 2014), the Court reiterated the following principles. In order to rely on Article 34 of the Convention, an applicant must be able to claim to be a victim of a violation of the Convention. According to the Court ’ s established case - law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act ( see Nencheva and Others, cited above, § 88). The individual concerned must be able to show that he or she was “directly affected” by the measure complained of ( see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 96, with further references ). 90. An exception is made to this principle where the alleged violation or violations of the Convention are closely linked to a death or disappearance in circumstances allegedly engaging the responsibility of the State. In such cases the Court has recognised the standing of the victim ’ s next-of-kin to submit an application ( see Nencheva and Others, cited above, § 89, and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, §§ 98-99, with further references ). 91. Where the application is not lodged by the victims themselves, Rule 45 § 3 of the Rules of Court requires a written authority to act, duly signed, to be produced. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim on whose behalf they purport to act before the Court (see Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009; Nencheva and Others, cited above, § 83; and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 102). However, the Convention institutions have held that special considerations may arise in the case of victims of alleged breaches of Articles 2, 3 and 8 of the Convention at the hands of the national authorities. Applications lodged by individuals on behalf of the victim or victims, even though no valid form of authority was presented, have thus been declared admissible ( see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 103). 92. Particular consideration has been shown with regard to the victims ’ vulnerability on account of their age, sex or disability, which rendered them unable to lodge a complaint on the matter with the Court, due regard also being paid to the connections between the person lodging the application and the victim (ibid .). 93. For instance, in S.P., D.P. and A.T. v. the United Kingdom (no. 23715/94, Commission decision of 20 May 1996, unreported ), which concerned, inter alia, Article 8 of the Convention, the Commission declared admissible an application lodged by a solicitor on behalf of children whom he had represented in the domestic proceedings, in which he had been instructed by the guardian ad litem, after noting in particular that their mother had displayed no interest, that the local authorities had been criticised in the application and that there was no conflict of interests between the solicitor and the children. In İlhan v. Turkey ([GC], no. 22277/93, §§ 54-55, ECHR 2000 ‑ VII), where the direct victim, Abdüllatif İlhan, had suffered severe injuries as a result of ill-treatment at the hands of the security forces, the Court held that his brother could be regarded as having validly introduced the application, based on Articles 2 and 3 of the Convention, since it was clear from the facts that Abdüllatif İlhan had consented to the proceedings, there was no conflict of interests between himself and his brother, who had been closely concerned with the incident, and he was in a particularly vulnerable position because of his injuries. In Y.F. v. Turkey ( no. 24209/94, § 31, ECHR 2003 ‑ IX), in which a husband alleged under Article 8 of the Convention that his wife had been forced to undergo a gynaecological examination following her detention in police custody, the Court found that it was open to the applicant, as a close relative of the victim, to make a complaint concerning allegations by her of violations of the Convention, in particular having regard to her vulnerable position in the special circumstances of the case. 94. Still in the context of Article 8 of the Convention, the Court has also accepted on several occasions that parents who did not have parental rights could apply to it on behalf of their minor children (see, in particular, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §§ 138 ‑ 39, ECHR 2000 ‑ VIII; Šneersone and Kampanella v. Italy, no. 14737/09, § 61, 12 July 2011; Diamante and Pelliccioni v. San Marino, no. 32250/08, §§ 146-47, 27 September 2011; A.K. and L. v. Croatia, no. 37956/11, §§ 48-50, 8 January 2013; and Raw and Others v. France, no. 10131/11, §§ 51-52, 7 March 2013). The key criterion for the Court in these cases was the risk that some of the children ’ s interests might not be brought to its attention and that they would be denied effective protection of their Convention rights. 95. Lastly, the Court recently adopted a similar approach in Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, concerning a young man of Roma origin, seriously disabled and HIV positive, who died in hospital before the application was lodged and had no known next-of-kin and no State-appointed representative. In view of the exceptional circumstances of the case and the seriousness of the allegations, the Court recognised that the Centre for Legal Resources had standing to represent Valentin Câmpeanu. The Court emphasised that to find otherwise would amount to preventing such serious allegations of a violation of the Convention from being examined at an international level ( ibid., § 112). ( b) Application to the present case 96. The applicants alleged on Vincent Lambert ’ s behalf a violation of Articles 2, 3 and 8 of the Convention ( see paragraph 80 above ). 97. The Court considers at the outset that the case-law concerning applications lodged on behalf of deceased persons is not applicable in the present case, since Vincent Lambert is not dead but is in a state described by the expert medical report as vegetative (see paragraph 40 above). The Court must therefore ascertain whether the circumstances before it are of the kind in which it has previously held that an application could be lodged in the name and on behalf of a vulnerable person without him or her having issued either a valid authority to act or instructions to the person purporting to act for him or her ( see paragraphs 93-95 above ). 98. It notes that none of the cases in which it has accepted, by way of an exception, that an individual may act on behalf of another is comparable to the present case. The case in Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, is to be distinguished from the present case in so far as the direct victim was dead and had no one to represent him. In the present case, while the direct victim is unable to express his wishes, several members of his close family wish to express themselves on his behalf, while defending diametrically opposed points of view. The applicants mainly rely on the right to life protected by Article 2, the “sanctity” of which was stressed by the Court in Pretty v. the United Kingdom (no. 2346/02, § 65, ECHR 2002 ‑ III), whereas the individual third ‑ party interveners (Rachel Lambert, François Lambert and Marie ‑ Geneviève Lambert) rely on the right to respect for private life and in particular the right of each individual, encompassed in the notion of personal autonomy ( ibid., § 61), to decide in which way and at which time his or her life should end (ibid. , § 67; see also Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011, and Koch, cited above, § 52). 99. The applicants propose that the Court should apply the criteria set forth in Koch (cited above, § 44), which, in their submission, they satisfy on account of their close family ties, the fact that they have a sufficient personal or legal interest in the outcome of the proceedings and the fact that they have previously expressed an interest in the case. 100. However, the Court observes that in Koch, cited above, the applicant argued that his wife ’ s suffering and the circumstances of her death had affected him to the extent of constituting a violation of his own rights under Article 8 of the Convention (§ 43). Thus, it was on that point that the Court was required to rule, and it was against that background that it considered that account should also be taken of the criteria developed in its case-law allowing a relative or heir to bring an action before it on the deceased person ’ s behalf (§ 44). 101. In the Court ’ s view, these criteria are not applicable in the present case since Vincent Lambert is not dead and the applicants are seeking to raise complaints on his behalf. 102. A review of the cases in which the Convention institutions have accepted that a third party may, in exceptional circumstances, act in the name and on behalf of a vulnerable person (see paragraphs 93-95 above ) reveals the following two main criteria: the risk that the direct victim will be deprived of effective protection of his or her rights, and the absence of a conflict of interests between the victim and the applicant. 103. Applying these criteria to the present case, the Court does not discern any risk, firstly, that Vincent Lambert will be deprived of effective protection of his rights since, in accordance with its consistent case-law ( see paragraphs 90 above and 115 below ), it is open to the applicants, as Vincent Lambert ’ s close relatives, to rely before the Court, on their own behalf, on the right to life protected by Article 2. 104. As regards the second criterion, the Court must next ascertain whether there is a convergence of interests between the applicants and Vincent Lambert. In that connection it notes that one of the key aspects of the domestic proceedings consisted precisely in determining Vincent Lambert ’ s wishes, given that Dr Kariger ’ s decision of 11 January 2014 was based on the certainty that Vincent Lambert “ had not wished, before his accident, to live under such conditions” (see paragraph 22 above). In its judgment of 24 June 2014, the Conseil d ’ État found, in the light of the testimony of Vincent Lambert ’ s wife and one of his brothers and the statements of several of his other siblings, that in basing his decision on that ground, Dr Kariger “[could not] be regarded as having incorrectly interpreted the wishes expressed by the patient before his accident” (see paragraph 50 above). Accordingly, the Court does not consider it established that there is a convergence of interests between the applicants ’ assertions and what Vincent Lambert would have wished. 105. The Court concludes that the applicants do not have standing to raise the complaints under Articles 2, 3 and 8 of the Convention in the name and on behalf of Vincent Lambert. 106. It follows that these complaints are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 ( a) and must be rejected pursuant to Article 35 § 4. B. Rachel Lambert ’ s standing to act in the name and on behalf of Vincent Lambert 1. The parties ’ submissions 107. In a letter from her lawyer dated 9 July 2014, Rachel Lambert requested leave to represent her husband Vincent Lambert as a third-party intervener in the procedure. In support of her request she furnished a judgment of the Châlons ‑ en ‑ Champagne guardianship judge, dated 17 December 2008, giving her authority to represent her husband in matters arising out of their matrimonial regime, as well as two statements from a sister and half-brother of Vincent Lambert. According to those statements, Vincent Lambert would not have wished a decision in his case to be taken by his parents, from whom he was morally and physically estranged, but rather by his wife, who was his person of trust. She also produced a statement by her stepmother, who said that she had accompanied Rachel Lambert in July 2012 to a consultation with a professor of medicine at Liège University Hospital which was also attended by the first two applicants. During the consultation she and Rachel Lambert had stated Vincent Lambert ’ s wish not to live in an incapacitated state if such a situation should arise, and the second applicant had reportedly said that, if the question of euthanasia should arise, she would leave the decision to Rachel Lambert. In her observations, Rachel Lambert submitted that, since she was informed of her husband ’ s wishes, as corroborated by the statements she had produced, she alone had legal standing to act on behalf of Vincent Lambert and to represent him. 108. The Government did not make any submissions on this point. 109. The applicants submitted that the ruling of the guardianship judge produced by Rachel Lambert did not give her general authority to represent her husband, but merely authority to represent him in property-related matters. She could not therefore claim to be the only person to represent her husband before the Court. The applicants further maintained that the statements she had produced had no legal value; they also disputed the content of the statement by Rachel Lambert ’ s stepmother. They noted that Vincent Lambert had not designated a person of trust, and concluded that, as French law currently stood and in the absence of a full or partial guardianship order, Vincent Lambert was not represented by anyone in proceedings concerning him personally. 2. The Court ’ s assessment 110. The Court notes that no provision of the Convention permits a third-party intervener to represent another person before the Court. Furthermore, according to Rule 44 § 3 (a) of the Rules of Court, a third ‑ party intervener is any person concerned “ who is not the applicant”. 111. Accordingly, the Court cannot but refuse Rachel Lambert ’ s request. C. Conclusion 112. The Court has found that the applicants lacked standing to allege a violation of Articles 2, 3 and 8 of the Convention in the name and on behalf of Vincent Lambert (see paragraphs 105 ‑ 06 above), and has also rejected Rachel Lambert ’ s request to represent her husband as a third-party intervener (see paragraphs 110 ‑ 11 above). Nevertheless, the Court emphasises that, notwithstanding the findings it has just made regarding admissibility, it will examine below all the substantive issues arising in the present case under Article 2 of the Convention, given that they were raised by the applicants on their own behalf. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 113. The applicants submitted that the withdrawal of Vincent Lambert ’ s artificial nutrition and hydration would be in breach of the State ’ s obligations under Article 2 of the Convention. They maintained that the Leonetti Act lacked clarity and precision, and complained of the process culminating in the doctor ’ s decision of 11 January 2014. 114. The Government contested that argument. A. Admissibility 115. The Court reiterates its case-law to the effect that the next-of-kin of a person whose death allegedly engages the responsibility of the State may claim to be victims of a violation of Article 2 of the Convention (see paragraph 90 above). Although Vincent Lambert is still alive, there is no doubt that if artificial nutrition and hydration were withdrawn, his death would occur within a short time. Accordingly, even if the violation is a potential or future one (see Tauira and 18 Others v. France, no. 28204/95, Commission decision of 4 December 1995, Decisions and Reports 83 ‑ B, p. 112, at p. 131), the Court considers that the applicants, in their capacity as Vincent Lambert ’ s close relatives, may rely on Article 2. 116. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other ground. The complaint must therefore be declared admissible. B. Merits 1. The applicable rule 117. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and enshrines one of the basic values of the democratic societies making up the Council of Europe ( see McCann and Others v. the United Kingdom, 27 September 1995, §§ 1 4 6 ‑ 4 7, Series A no. 324), enjoins the State not only to refrain from the “intentional” taking of life (negative obligations), but also to take appropriate steps to safeguard the lives of those within its jurisdiction (positive obligations) (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III). 118. The Court will address these two aspects in turn and will begin by examining whether the present case involves the State ’ s negative obligations under Article 2. 119. While the applicants acknowledged that the withdrawal of nutrition and hydration might be legitimate in cases of unreasonable obstinacy, and accepted that a legitimate distinction existed between, on the one hand, euthanasia and assisted suicide and, on the other hand, “ therapeutic abstention”, consisting in withdrawing or withholding treatment that had become unreasonable, they nevertheless argued repeatedly in their observations that, since these criteria were not met in their view, the present case concerned the intentional taking of life; they referred in this regard to the notion of “euthanasia”. 120. The Government stressed that the aim of the medical decision was not to put an end to life, but to discontinue a form of treatment which had been refused by the patient or – where the patient was unable to express his or her wishes – which constituted, in the doctor ’ s view based on medical and non-medical factors, unreasonable obstinacy. They quoted the public rapporteur before the Conseil d ’ État, who in his submissions of 20 June 2014 had noted that, in discontinuing treatment, a doctor was not taking the patient ’ s life but was resolving to withdraw when there was nothing more to be done (see paragraph 45 above). 121. The Court observes that the Leonetti Act does not authorise either euthanasia or assisted suicide. It allows doctors, in accordance with a prescribed procedure, to discontinue treatment only if continuing it demonstrates unreasonable obstinacy. In its observations to the Conseil d ’ État, the National Medical Academy reiterated the fundamental prohibition barring doctors from deliberately taking another ’ s life, which formed the basis for the relationship of trust between doctor and patient. That prohibition is laid down in Article R. 4127-38 of the Public Health Code, which states that doctors may not take life intentionally (see paragraph 55 above). 122. At the hearing of 14 February 2014 before the Conseil d ’ État, the public rapporteur cited the remarks made by the Minister of Health to the members of the Senate examining the Leonetti Bill: “While the act of withdrawing treatment ... results in death, the intention behind the act [is not to kill; it is] to allow death to resume its natural course and to relieve suffering. This is particularly important for care staff, whose role is not to take life.” 123. In the case of Glass v. the United Kingdom ((dec.), no. 61827/00, 18 March 2003), the applicants complained under Article 2 of the Convention that a potentially lethal dose of diamorphine had been administered to their son, without their consent, by doctors in the hospital where he was being treated. The Court noted that the doctors had not deliberately sought to kill the child or to hasten his death, and examined the parents ’ complaints from the standpoint of the authorities ’ positive obligations (see also Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V). 124. The Court notes that both the applicants and the Government make a distinction between the intentional taking of life and “therapeutic abstention” (see paragraphs 119-20 above), and stresses the importance of that distinction. In the context of the French legislation, which prohibits the intentional taking of life and permits life-sustaining treatment to be withdrawn or withheld only in certain specific circumstances, the Court considers that the present case does not involve the State ’ s negative obligations under Article 2, and will examine the applicants ’ complaints solely from the standpoint of the State ’ s positive obligations. 2. Whether the State complied with its positive obligations ( a) The submissions of the parties and the third-party interveners ( i) The applicants 125. The applicants submitted first of all that the Leonetti Act was not applicable to Vincent Lambert, who, in their view, was neither sick nor at the end of life, but was severely disabled. They complained of the “confusion” arising from the Act on the following points: the notion of unreasonable obstinacy (and in particular the criterion concerning treatment having “ no other effect than to sustain life artificially”, which they considered to be extremely imprecise), and the classification of artificial nutrition and hydration as treatment rather than care. In their submission, Vincent Lambert ’ s enteral feeding was not a form of treatment that could be withdrawn, and the notion of unreasonable obstinacy did not apply to his medical situation. 126. They argued that the process leading to the doctor ’ s decision of 11 January 2014 was incompatible with the State ’ s obligations flowing from Article 2 of the Convention. In their view, the procedure was not truly collective as it involved seeking opinions on a purely consultative basis, with the doctor alone taking the decision. They maintained that alternative systems were possible which would allow other doctors or the members of the family, in the absence of a person of trust, to participate in the decision ‑ making process. Lastly, they argued that the legislation should take into account the possibility of disagreement between family members and make provision at the very least for mediation. ( ii) The Government 127. The Government submitted that the Leonetti Act struck a balance between the right to respect for life and patients ’ right to consent to or refuse treatment. The definition of unreasonable obstinacy was based on the ethical principles of beneficence and non ‑ maleficence reiterated in the Council of Europe ’ s “Guide on the decision-making process regarding medical treatment in end-of-life situations”. In accordance with those principles, health-care professionals had an obligation to deliver only appropriate treatment and had to be guided solely by the benefit to the patient, which was to be assessed in overall terms. In that regard both medical and non ‑ medical factors, and in particular the patient ’ s wishes, were to be taken into account. They pointed out that when the bill had been debated in Parliament, an amendment seeking to exclude artificial nutrition and hydration from the scope of treatment had been rejected. They stressed that treatment also encompassed methods and interventions responding to a functional deficiency in the patient and involving the use of intrusive medical techniques. 128. The Government emphasised that the French legislation provided for a number of procedural safeguards: consideration of the patient ’ s wishes and of the views of the person of trust, the family or those close to the patient and implementation of a collective procedure in which the family and those close to the patient were involved. Lastly, the doctor ’ s decision was subject to review by a judge. ( iii) The third-party interveners ( α ) Rachel Lambert 129. Rachel Lambert submitted that the Leonetti Act subjected the doctor ’ s decision to numerous safeguards and balanced each individual ’ s right to receive the most suitable care with the right not to undergo treatment in circumstances amounting to unreasonable obstinacy. She stressed that the legislature had not sought to limit the recognition of patients ’ previously expressed wishes to cases in which they had designated a person of trust or drawn up advance directives; where this was not the case, the views of the family were sought in order, first and foremost, to establish what the patient would have wanted. 130. Referring to the collective procedure implemented in the present case, she pointed out that Dr Kariger had consulted six doctors (three of them from outside the hospital), had convened a meeting with virtually all the care staff and all the doctors and had held two meetings with the family. His decision had been reasoned at length and bore witness to the professionalism of his approach. ( β ) François Lambert and Marie-Geneviève Lambert 131. François Lambert and Marie-Geneviève Lambert submitted that the doctor ’ s decision had been taken in accordance with the Leonetti Act, referred to above, the provisions of which they recapitulated. They stressed that the data emerging from the expert medical report ordered by the Conseil d ’ État were fully consistent with the notion of treatment serving solely to sustain life artificially, observing that it was Vincent Lambert ’ s inability to eat and drink by himself, without medical assistance in the form of enteral nutrition and hydration, that would cause his death. 132. They submitted that the decision ‑ making process in the present case had been particularly lengthy, meticulous and respectful of the rights of all concerned, of the medical and paramedical opinions sought and of the views of the family members who had been invited to participate (especially the applicants, who had been assisted by a doctor of their choosing throughout the process) and who had been kept fully informed at every stage. In their view, the final decision had been taken in accordance with the process required by law and by the Convention, as set out in the Council of Europe ’ s “Guide on the decision-making process regarding medical treatment in end ‑ of ‑ life situations”. ( γ) National Union of Associations of Head Injury and Brain Damage Victims ’ Families ( UNAFTC ) 133. UNAFTC echoed the concerns of the families and establishments it represented, and argued that patients in a chronic vegetative or minimally conscious state were not in an end-of-life situation and were not being kept alive artificially, and that where a person ’ s condition was not life ‑ threatening, artificial feeding and hydration could not be deemed to constitute treatment that could be withdrawn. UNAFTC submitted that a patient ’ s wishes could not be established on the basis of spoken remarks reported by some of the family members, and when in doubt, life should take precedence. At all events, in the absence of advance directives and of a person of trust, no decision to withdraw treatment could be taken in the absence of consensus within the family. ( δ) Amréso-Bethel 134. The association Amréso ‑ Bethel, which runs a care unit for patients in a minimally conscious or chronic vegetative state, provided details of the care dispensed to its patients. ( ε) Human Rights Clinic 135. In view of the multitude of approaches across the world to end ‑ of ‑ life issues and the differences regarding the circumstances in which passive euthanasia was permitted, the Human Rights Clinic submitted that States should be allowed a margin of appreciation in striking a balance between patients ’ personal autonomy and the protection of their lives. ( b) The Court ’ s assessment ( i) General considerations ( α ) Existing case-law 136. The Court has never ruled on the question which is the subject of the present application, but it has examined a number of cases concerning related issues. 137. In a first group of cases, the applicants or their relatives invoked the right to die, relying on various Articles of the Convention. In Sanles Sanles, cited above, the applicant asserted, on behalf of her brother-in-law, who was tetraplegic and wished to end his life with the assistance of third parties and who died before the application was lodged, the right to die with dignity, relying on Articles 2, 3, 5, 6, 8, 9 and 14 of the Convention. The Court rejected the application as being incompatible ratione personae with the provisions of the Convention. In Pretty, cited above, the applicant was in the terminal stages of an incurable neurodegenerative disease and complained, relying on Articles 2, 3, 8, 9 and 14 of the Convention, that her husband could not help her to commit suicide without facing prosecution by the United Kingdom authorities. The Court found no violation of the provisions in question. Haas and Koch, cited above, concerned assisted suicide, and the applicants relied on Article 8 of the Convention. In Haas, the applicant, who had been suffering for a long time from a serious bipolar affective disorder, wished to end his life and complained of being unable to obtain the lethal substance required for that purpose without a medical prescription; the Court held that there had been no violation of Article 8. In Koch, the applicant alleged that the refusal to allow his wife (who was paralysed and needed artificial ventilation) to acquire a lethal dose of medication so that she could take her own life had breached her right, and his, to respect for their private and family life. He also complained of the domestic courts ’ refusal to examine his complaints on the merits, and the Court found a violation of Article 8 on that point only. 138. In a second group of cases, the applicants took issue with the administering or withdrawal of treatment. In Glass, cited above, the applicants complained that diamorphine had been administered to their sick child by hospital doctors without their consent, and of the “ do not resuscitate ” order entered in his medical notes. In its decision of 18 March 2003, cited above, the Court found that their complaint under Article 2 of the Convention was manifestly ill-founded; in its judgment of 9 March 2004 it held that there had been a violation of Article 8 of the Convention. In Burke v. the United Kingdom ((dec.), no. 19807/06, 11 July 2006), the applicant suffered from an incurable degenerative brain condition and feared that the guidance applicable in the United Kingdom could lead in due course to the withdrawal of his artificial nutrition and hydration. The Court declared his application, lodged under Articles 2, 3 and 8 of the Convention, inadmissible as being manifestly ill-founded. Lastly, in its decision in Ada Rossi and Others, cited above, the Court declared incompatible ratione personae an application lodged by individuals and associations complaining, under Articles 2 and 3 of the Convention, of the potentially adverse effects for them of execution of a judgment of the Italian Court of Cassation authorising the discontinuation of the artificial nutrition and hydration of a young girl in a vegetative state. [1] 139. The Court observes that, with the exception of the violations of Article 8 in Glass and Koch, cited above, it did not find a violation of the Convention in any of these cases. [2] ( β ) The context 140. Article 2 requires the State to take appropriate steps to safeguard the lives of those within its jurisdiction ( see L.C.B. v. the United Kingdom, cited above, § 36, and the decision in Powell, cited above); in the public-health sphere, these positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I; Glass, cited above; Vo v. France [GC], no. 53924/00, § 89, ECHR 2004 ‑ VIII; and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 130). 141. The Court stresses that the issue before it in the present case is not that of euthanasia, but rather the withdrawal of life ‑ sustaining treatment (see paragraph 124 above). 142. In Haas ( cited above, § 54), the Court reiterated that the Convention had to be read as a whole (see, mutatis mutandis, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 83, ECHR 2009). In Haas (cited above, § 54) the Court considered that it was appropriate, in the context of examining a possible violation of Article 8, to refer to Article 2 of the Convention. The Court considers that the converse also applies : in a case such as the present one reference should be made, in examining a possible violation of Article 2, to Article 8 of the Convention and to the right to respect for private life and the notion of personal autonomy which it encompasses. In Pretty ( cited above, § 67) the Court was not prepared to exclude that preventing the applicant by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for her private life as guaranteed under Article 8 § 1 of the Convention. In Haas ( cited above, § 51), it asserted that an individual ’ s right to decide in which way and at which time his or her life should end was one of the aspects of the right to respect for private life. The Court refers in particular to paragraphs 63 and 65 of the judgment in Pretty, where it stated as follows. “ ... In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person ’ s physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention. As recognised in domestic case-law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life ... The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.” 143. The Court will take these considerations into account in examining whether the State complied with its positive obligations flowing from Article 2. It further observes that, in addressing the question of the administering or withdrawal of medical treatment in Glass and Burke, cited above, it took into account the following factors : (a) the existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2 ( see Glass, cited above); (b) whether account had been taken of the applicant ’ s previously expressed wishes and those of the persons close to him or her, as well as the opinions of other medical personnel ( see Burke, cited above); (c) the possibility to approach the courts in the event of doubts as to the best decision to take in the patient ’ s interests (ibid.). The Court will take these factors into consideration in examining the present case. It will also take account of the criteria laid down in the Council of Europe ’ s “ Guide on the decision ‑ making process regarding medical treatment in end-of-life situations ” (see paragraphs 60-68 above). ( γ ) The margin of appreciation 144. The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention, one which, in peace time, admits of no derogation under Article 15, and that it construes strictly the exceptions defined therein (see, among other authorities, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 174-77, ECHR 2011 ). However, in the context of the State ’ s positive obligations, when addressing complex scientific, legal and ethical issues concerning in particular the beginning or the end of life, and in the absence of consensus among the member States, the Court has recognised that the latter have a certain margin of appreciation. First of all the Court observes that in Vo (which concerned the acquittal on a charge of unintentional homicide of the doctor responsible for the death of the applicant ’ s unborn child), in examining the point at which life begins from the standpoint of Article 2 of the Convention, it concluded that this matter came within the States ’ margin of appreciation in this sphere. It took into consideration the absence of a common approach among the Contracting States and of a European consensus on the scientific and legal definition of the beginning of life ( cited above, § 82). The Court reiterated this approach in, inter alia, Evans v. the United Kingdom ([GC], no. 6339/05, §§ 54-56, ECHR 2007 ‑ I, concerning the fact that domestic law permitted the applicant ’ s former partner to withdraw his consent to the storage and use of embryos created jointly by them) and in A, B and C v. Ireland ([GC], no. 25579/05, § 237, ECHR 2010, in which the applicants essentially complained under Article 8 of the Convention of the prohibition on abortion in Ireland for health and well ‑ being reasons). 145. On the question of assisted suicide the Court noted, in the context of Article 8 of the Convention, that there was no consensus among the member States of the Council of Europe as to an individual ’ s right to decide in which way and at which time his or her life should end, and therefore concluded that the States ’ margin of appreciation in this area was “considerable” ( see Haas, cited above, § 55, and Koch, cited above, § 70). 146. The Court also stated, in general terms, in Ciechońska v. Poland ( no. 19776/04, § 65, 14 June 2011), concerning the authorities ’ responsibility for the accidental death of the applicant ’ s husband, that the choice of means for ensuring the positive obligations under Article 2 was in principle a matter that fell within the State ’ s margin of appreciation. 147. The Court notes that no consensus exists among the Council of Europe member States in favour of permitting the withdrawal of artificial life-sustaining treatment, although the majority of States appear to allow it. While the detailed arrangements governing the withdrawal of treatment vary from one country to another, there is nevertheless consensus as to the paramount importance of the patient ’ s wishes in the decision-making process, however those wishes are expressed (see paragraphs 74 ‑ 7 5 above). 148. Accordingly, the Court considers that in this sphere concerning the end of life, as in that concerning the beginning of life, States must be afforded a margin of appreciation, not just as to whether or not to permit the withdrawal of artificial life ‑ sustaining treatment and the detailed arrangements governing such withdrawal, but also as regards the means of striking a balance between the protection of patients ’ right to life and the protection of their right to respect for their private life and their personal autonomy (see, mutatis mutandis, A, B and C v. Ireland, cited above, § 237). However, this margin of appreciation is not unlimited (ibid. , § 238) and the Court reserves the power to review whether or not the State has complied with its obligations under Article 2. ( ii) Application to the present case 149. The applicants alleged that the Leonetti Act lacked clarity and precision, and complained of the process culminating in the doctor ’ s decision of 11 January 2014. In their view, these shortcomings were the result of the national authorities ’ failure to fulfil their duty of protection under Article 2 of the Convention. ( α ) The legislative framework 150. The applicants complained of a lack of precision and clarity in the legislation, which, in their submission, was not applicable to the case of Vincent Lambert, who was neither sick nor at the end of his life. They further maintained that the legislation did not define with sufficient precision the concepts of unreasonable obstinacy and treatment that could be withdrawn. 151. The Court has regard to the legislative framework established by the Public Health Code (hereinafter “the Code”) as amended by the Leonetti Act (see paragraphs 52 ‑ 54 above). It further reiterates that interpretation is inherent in the work of the judiciary ( see, among other authorities, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 85, 20 October 2011). It observes that, prior to the rulings given in the present case, the French courts had never been called upon to interpret the provisions of the Leonetti Act, although it had been in force for nine years. In the present case the Conseil d ’ État had the task of clarifying the scope of application of the Act and defining the concepts of “treatment” and “unreasonable obstinacy” (see below). The scope of application of the Act 152. In its ruling of 14 February 2014, the Conseil d ’ État determined the scope of application of the Act. It held that it was clear from the very wording of the applicable provisions, and from the parliamentary proceedings prior to enactment of the legislation, that the provisions in question were general in scope and were applicable to all users of the health system, whether or not the patient was in an end - of - life situation (see paragraph 33 above). 153. The Court notes that in his observations to the Conseil d ’ État Mr Jean Leonetti, the rapporteur for the Act, stated in his capacity as amicus curiae that it was applicable to patients who had brain damage and thus suffered from a serious condition that was incurable in the advanced stages, but who were not necessarily “at the end of life”. For that reason the legislature, in the title of the Act, had referred to “patients ’ rights and end-of-life issues” rather than “patients ’ rights in end ‑ of ‑ life situations ” (see, to similar effect, the observations of the National Medical Academy, paragraph 44 above). The concept of treatment 154. The Conseil d ’ État, in its ruling of 14 February 2014, interpreted the concept of treatment that could be withdrawn or limited. It held, in the light of Articles L. 1110 ‑ 5 and 1111 ‑ 4 of the Code, cited above, and of the parliamentary proceedings, that the legislature had intended to include among such forms of treatment all acts seeking to maintain the patient ’ s vital functions artificially, and that artificial nutrition and hydration fell into that category of acts. The amicus curiae submissions to the Conseil d ’ État agreed on this point. 155. The Court notes that the Council of Europe ’s “Guide on the decision ‑ making process regarding medical treatment in end ‑ of ‑ life situations” addresses these issues. The Guide specifies that treatment covers not only interventions whose aim is to improve a patient ’ s state of health by acting on the causes of the illness, but also interventions which have a bearing only on the symptoms and not on the aetiology of the illness, or which are responses to an organ dysfunction. According to the Guide, artificial nutrition and hydration are given to a patient following a medical indication and imply choices concerning medical procedures and devices (perfusion, feeding tubes). The Guide observes that differences in approach exist between countries. Some regard artificial nutrition and hydration as a form of treatment that may be limited or withdrawn in the circumstances and in accordance with the guarantees provided for in domestic law. The considerations to be taken into account in this regard are the patient ’ s wishes and whether or not the treatment is appropriate in the situation in question. In other countries they are regarded as a form of care meeting the individual ’ s basic needs which cannot be withdrawn unless the patient, in the terminal phase of an end ‑ of ‑ life situation, has expressed a wish to that effect (see paragraph 61 above). The concept of unreasonable obstinacy 156. Under the terms of Article L. 1110 ‑ 5 of the Code, treatment will amount to unreasonable obstinacy if it is futile or disproportionate or has “no other effect than to sustain life artificially” (see paragraph 53 above). It is this last criterion which was applied in the present case and which the applicants consider to be imprecise. 157. In his observations to the Conseil d ’ État in an amicus curiae capacity, Mr Leonetti stated that this wording, which was stricter than the wording originally envisaged ( treatment “which prolongs life artificially”) was more restrictive and referred to artificially sustaining life “in the purely biological sense, in circumstances where, firstly, the patient has major irreversible brain damage and, secondly, his or her condition offers no prospect of a return to awareness of self or relationships with others” (see paragraph 44 above). In the same vein, the National Medical Council emphasised the importance of the notion of temporality, observing that where a pathological condition had become chronic, resulting in the person ’ s physiological deterioration and the loss of his or her cognitive and relational faculties, obstinacy in administering treatment could be regarded as unreasonable if no signs of improvement were apparent (ibid.) 158. In its judgment of 24 June 2014, the Conseil d ’ État detailed the factors to be taken into account by the doctor in assessing whether the criteria for unreasonable obstinacy were met, while making clear that each situation had to be considered on its own merits. These were: the medical factors (which had to cover a sufficiently long period, be assessed collectively and relate in particular to the patient ’ s current condition, the change in that condition, his or her degree of suffering and the clinical prognosis) and the non ‑ medical factors, namely the patient ’ s wishes, however expressed, to which the doctor had to “attach particular importance”, and the views of the person of trust, the family or those close to the patient. 159. The Court notes that the Conseil d ’ État established two important safeguards in that judgment. Firstly, it stated that “the sole fact that a person is in an irreversible state of unconsciousness or, a fortiori, has lost his or her autonomy irreversibly and is thus dependent on such a form of nutrition and hydration, does not by itself amount to a situation in which the continuation of treatment would appear unjustified on grounds of unreasonable obstinacy”. Secondly, it stressed that where a patient ’ s wishes were not known, they could not be assumed to consist in a refusal to be kept alive ( see paragraph 48 above ). 160. On the basis of this analysis, the Court cannot subscribe to the applicants ’ arguments. It considers that the provisions of the Leonetti Act, as interpreted by the Conseil d ’ État, constitute a legal framework which is sufficiently clear, for the purposes of Article 2 of the Convention, to regulate with precision the decisions taken by doctors in situations such as that in the present case. The Court therefore concludes that the State put in place a regulatory framework apt to ensure the protection of patients ’ lives ( see paragraph 14 0 above ). ( β ) The decision-making process 161. The applicants complained of the decision-making process, which, in their view, should have been genuinely collective or at the very least have provided for mediation in the event of disagreement. 162. The Court notes at the outset that neither Article 2 nor its case-law can be interpreted as imposing any requirements as to the procedure to be followed with a view to securing a possible agreement. It points out that in Burke, cited above, it found the procedure consisting in determining the patient ’ s wishes and consulting those close to him or her as well as other medical personnel to be compatible with Article 2 (see paragraph 143 above). 163. The Court observes that, although the procedure under French law is described as “collective” and includes several consultation phases (with the care team, at least one other doctor, the person of trust, the family or those close to the patient), it is the doctor in charge of the patient alone who takes the decision. The patient ’ s wishes must be taken into account and the decision itself must be accompanied by reasons and is added to the patient ’ s medical file. 164. In his observations as amicus curiae, Mr Jean Leonetti pointed out that the Act gave the doctor sole responsibility for the decision to withdraw treatment and that it had been decided not to pass that responsibility on to the family, in order to avoid any feelings of guilt and to ensure that the person who took the decision was identified. 165. It is clear from the comparative-law materials available to the Court that in those countries which authorise the withdrawal of treatment, and where the patient has not drawn up any advance directives, there exists a great variety of arrangements governing the taking of the final decision to withdraw treatment. It may be taken by the doctor (this is the most common situation), jointly by the doctor and the family, by the family or legal representative, or by the courts ( see paragraph 75 above ). 166. The Court observes that the collective procedure in the present case lasted from September 2013 to January 2014 and that, at every stage of its implementation, it exceeded the requirements laid down by law. Whereas the procedure provides for the consultation of one other doctor and, where appropriate, a second one, Dr Kariger consulted six doctors, one of whom was designated by the applicants. He convened a meeting of virtually the entire care team and held two meetings with the family which were attended by Vincent Lambert ’ s wife, his parents and his eight siblings. Following those meetings Vincent Lambert ’ s wife and six of his brothers and sisters argued in favour of withdrawing treatment, as did five of the six doctors consulted, while the applicants opposed such a move. The doctor also held discussions with François Lambert, Vincent Lambert ’ s nephew. His decision, which ran to thirteen pages (an abridged seven-page version of which was read out to the family) provided very detailed reasons. The Conseil d ’ État held in its judgment of 24 June 2014 that it was not tainted by any irregularity (see paragraph 50 above). 167. The Conseil d ’ État found that the doctor had complied with the requirement to consult the family and that it had been lawful for him to take his decision in the absence of unanimity among the family members. The Court notes that French law as it currently stands provides for the family to be consulted (and not for it to participate in taking the decision), but does not make provision for mediation in the event of disagreement between family members. Likewise, it does not specify the order in which family members ’ views should be taken into account, unlike in some other countries. 168. The Court notes the absence of consensus on this subject ( see paragraph 16 5 above ) and considers that the organisation of the decision ‑ making process, including the designation of the person who takes the final decision to withdraw treatment and the detailed arrangements for the taking of the decision, fall within the State ’ s margin of appreciation. It notes that the procedure in the present case was lengthy and meticulous, exceeding the requirements laid down by the law, and considers that, although the applicants disagree with the outcome, that procedure satisfied the requirements flowing from Article 2 of the Convention (see paragraph 143 above). ( γ ) Judicial remedies 169. Lastly, the Court will examine the remedies that were available to the applicants in the present case. It observes that the Conseil d ’ État, called upon for the first time to rule on an appeal against a decision to withdraw treatment under the Leonetti Act, provided some important clarifications in its rulings of 14 February and 24 June 2014 concerning the scope of the review carried out by the urgent-applications judge of the administrative court in cases such as the present one. 170. The applicants had lodged an urgent application with the administrative court for protection of a fundamental freedom under Article L. 521-2 of the Administrative Courts Code. This Article provides that the judge, “when hearing an application of this kind justified by particular urgency, may order any measures necessary to safeguard a fundamental freedom allegedly breached in a serious and manifestly unlawful manner by an administrative authority”. When dealing with an application on this basis, the urgent ‑ applications judge of the administrative court normally rules alone and as a matter of urgency, and may order interim measures on the basis of a “plain and obvious” test ( manifest unlawfulness). 171. The Court notes that, as defined by the Conseil d ’ État (see paragraph 32 above), the role of the urgent-applications judge entails the power not only to suspend implementation of the doctor ’ s decision but also to conduct a full review of its lawfulness (and not just apply the test of manifest unlawfulness), if necessary sitting as a member of a bench of judges and, if needs be, after ordering an expert medical report and seeking the opinions of persons acting in an amicus curiae capacity. 172. The Conseil d ’ État also specified in its judgment of 24 June 2014 that the particular role of the judge in such cases meant that he or she had to examine – in addition to the arguments alleging that the decision in question was unlawful – any arguments to the effect that the legislative provisions that had been applied were incompatible with the Convention. 173. The Court notes that the Conseil d ’ État examined the case sitting as a full court (the seventeen-member Judicial Assembly), which is highly unusual in injunction proceedings. In its ruling of 14 February 2014, it stated that the assessment carried out at Liège University Hospital dated from two and a half years previously, and considered it necessary to have the fullest information possible on Vincent Lambert ’ s state of health. It therefore ordered an expert medical report, which it entrusted to three recognised specialists in neuroscience. Furthermore, in view of the scale and difficulty of the issues raised by the case, it requested the National Medical Academy, the National Ethics Advisory Committee, the National Medical Council and Mr Jean Leonetti to submit general observations to it as amici curiae, in order to clarify in particular the concepts of unreasonable obstinacy and sustaining life artificially. 174. The Court notes that the expert report was prepared in great depth. The experts examined Vincent Lambert on nine occasions, conducted a series of tests and familiarised themselves with the entire medical file and with all the items in the judicial file of relevance for their report. Between 24 March and 23 April 2014 they also met all the parties concerned (the family, the medical and care team, the medical consultants and representatives of UNAFTC and the hospital). 175. In its judgment of 24 June 2014, the Conseil d ’ État began by examining the compatibility of the relevant provisions of the Public Health Code with Articles 2, 8, 6 and 7 of the Convention (see paragraph 47 above), before assessing the conformity of Dr Kariger ’ s decision with the provisions of the Code (see paragraphs 48 ‑ 50 above). Its review encompassed the lawfulness of the collective procedure and compliance with the substantive conditions laid down by law, which it considered – particularly in the light of the findings of the expert report – to have been satisfied. It noted in particular that it was clear from the experts ’ findings that Vincent Lambert ’ s clinical condition corresponded to a chronic vegetative state, that he had sustained serious and extensive injuries whose severity, coupled with the period of five and a half years that had passed since the accident, led to the conclusion that it was irreversible and that there was a “poor clinical prognosis”. In the view of the Conseil d ’ État, these findings confirmed those made by Dr Kariger. 176. The Court further observes that the Conseil d ’ État, after stressing “the particular importance” which the doctor must attach to the patient ’ s wishes (see paragraph 48 above), sought to ascertain what Vincent Lambert ’ s wishes had been. As the latter had not drawn up any advance directives or designated a person of trust, the Conseil d ’ État took into consideration the testimony of his wife, Rachel Lambert. It noted that she and her husband, who were both nurses with experience of patients in resuscitation and those with multiple disabilities, had often discussed their professional experiences and that on several such occasions Vincent Lambert had voiced the wish not to be kept alive artificially in a highly dependent state (see paragraph 50 above). The Conseil d ’ État found that those remarks – the tenor of which was confirmed by one of Vincent Lambert ’ s brothers – had been reported by Rachel Lambert in precise detail and with the corresponding dates. It also took account of the fact that several of Vincent Lambert ’ s other siblings had stated that these remarks were in keeping with their brother ’ s personality, past experience and views, and noted that the applicants did not claim that he would have expressed remarks to the contrary. The Conseil d ’ État observed, lastly, that the consultation of the family, prescribed by law, had taken place (ibid.). 177. The applicants submitted, relying on Article 8 of the Convention, that the Conseil d ’ État should not have taken into consideration Vincent Lambert ’ s spoken remarks, which they considered to be too general. 178. The Court points out first of all that it is the patient who is the principal party in the decision-making process and whose consent must remain at its heart; this is true even where the patient is unable to express his or her wishes. The Council of Europe ’ s “Guide on the decision ‑ making process regarding medical treatment in end-of-life situations” recommends that the patient should be involved in the decision-making process by means of any previously expressed wishes, which may have been confided orally to a family member or close friend (see paragraph 63 above). 179. The Court also observes that, according to the comparative ‑ law materials available to it, in the absence of advance directives or of a “living will”, a number of countries require that efforts be made to ascertain the patient ’ s presumed wishes, by a variety of means (statements of the legal representative or the family, other factors testifying to the patient ’ s personality and beliefs, and so forth ). 180. Lastly, the Court points out that in its judgment in Pretty ( cited above, § 63), it recognised the right of each individual to decline to consent to treatment which might have the effect of prolonging his or her life. Accordingly, it takes the view that the Conseil d ’ État was entitled to consider that the testimony submitted to it was sufficiently precise to establish what Vincent Lambert ’ s wishes had been with regard to the withdrawal or continuation of his treatment. ( δ ) Final considerations 181. The Court is keenly aware of the importance of the issues raised by the present case, which concerns extremely complex medical, legal and ethical matters. In the circumstances of the case, the Court reiterates that it was primarily for the domestic authorities to verify whether the decision to withdraw treatment was compatible with the domestic legislation and the Convention, and to establish the patient ’ s wishes in accordance with national law. The Court ’ s role consisted in ascertaining whether the State had fulfilled its positive obligations under Article 2 of the Convention. On the basis of that approach, the Court has found both the legislative framework laid down by domestic law, as interpreted by the Conseil d ’ État, and the decision-making process, which was conducted in meticulous fashion in the present case, to be compatible with the requirements of Article 2. As to the judicial remedies that were available to the applicants, the Court has reached the conclusion that the present case was the subject of an in ‑ depth examination in the course of which all points of view could be expressed and all aspects were carefully considered, in the light of both a detailed expert medical report and general observations from the highest ‑ ranking medical and ethical bodies. Consequently, the Court concludes that the domestic authorities complied with their positive obligations flowing from Article 2 of the Convention, in view of the margin of appreciation left to them in the present case. (ε ) Conclusion 182. It follows that there would be no violation of Article 2 of the Convention in the event of implementation of the Conseil d ’ État judgment of 24 June 2014. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 183. The applicants maintained that they were potentially victims of a violation of their right to respect for their family life with their son and brother, in breach of Article 8 of the Convention. 184. The Court is of the view that this complaint is absorbed by those raised by the applicants under Article 2 of the Convention. In view of its finding concerning that Article (see paragraph 18 2 above), the Court considers that it is not necessary to rule separately on this complaint. IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 185. The applicants further complained that the doctor who took the decision of 11 January 2014 was not impartial, as he had previously taken the same decision, and that the expert medical report ordered by the Conseil d ’ État had not been fully adversarial. They relied on Article 6 § 1 of the Convention, the relevant parts of which provide : “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” 186. Even assuming Article 6 § 1 to be applicable to the procedure resulting in the doctor ’ s decision of 11 January 2014, the Court considers that these complaints, to the extent that they have not been dealt with already under Article 2 of the Convention (see paragraphs 150 ‑ 1 81 above), are manifestly ill ‑ founded. 187. It follows that this aspect of the application must be rejected pursuant to Article 35 §§ 3 ( a) and 4 of the Convention. | On 24 June 2014, having taken note of the judgment delivered by the Conseil d’État, the Chamber to which the case had been assigned decided to indicate to the French Government that, pursuant to Rule 39 of the Rules of Court, in the interests of the parties and the proper conduct of the proceedings before it, they should stay the execution of the Conseil d’État’s judgment for the duration of the proceedings before the Court. In its judgment of 5 June 2015 the Grand Chamber held that there would be no violation of Article 2 (right to life) of the Convention in the event of implementation of the Conseil d’État’s judgment23. |
116 | Obligation on authorities to provide adequate protection against domestic violence | II. RELEVANT DOMESTIC LAW A. Code of Civil Procedure (applicable up to and including 31 December 2001) 20. Article 74 (1) of the Code of Civil Procedure, provides as follows: “Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties, or if there is a concern that the exercise of judgment would be threatened. The competent authority to issue an interim measure is the court which is competent to deal with the case. The parties to the proceedings are those who would be the parties if it concerned the merits.” 21. Article 76 provides that through an interim measure the court may impose upon the party, within the time assigned by the court, to perform something, to forbear from something, or to bear something. B. Code of Civil Procedure (as applicable from 1 January 2003 to 31 August 2003) 22. The amended Article 74 provided: “Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties, or if there is a concern that the exercise of judgment would be threatened. The competent authority to issue an interim measure is the court which is competent to deal with the case. The parties to the proceedings are those who would be the parties if it concerned the merits.” 23. The amended Article 76 specifically provides that the court may order a party “not to enter temporarily a house or an apartment occupied by a close person or person in his/her care or education in relation to whom there are reasons for he/she being suspected of violence.” C. Civil Code (as applicable from 1 January 2003) 24. Article 705a (8) of the Civil Code provides: “If a further cohabitation is unsupportable due to the physical or mental violence or threats of such violence from a husband or former husband, who is the joint user of an apartment, or from a close person jointly using an apartment, based on a motion of one of a married couple or former married couple the court can limit a right of use of the other of a married couple or exclude him/her totally from the right of use of an apartment. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 25. The applicants complained under Articles 3 and 8 of the Convention that the authorities had failed to protect them in an appropriate manner from treatment to which they had been subjected by their husband/father. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 26. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 27. The Government admitted that the domestic authorities failed to take appropriate measures to protect the second, third and fourth applicants from ill-treatment in violation of Article 3 of the Convention. The Government further admitted that the authorities failed to meet the positive obligation to respect the family and private lives of the second, third and fourth applicants. Nevertheless, the Government contended that the second, third and fourth applicants were no longer victims because they were provided with satisfactory redress at the national level. 28. With regard to the first applicant, the Government submitted that her application was inadmissible as she failed to exhaust domestic remedies. A. Admissibility 29. The Government submitted that the first applicant failed to exhaust domestic remedies. The Regional Court advised her that she had not formulated the claim correctly and that she should have requested the issuance of an interim measure formulated with regard to the specific behaviour of her former husband. In this regard she was in a different position from the second, third and fourth applicants, who, as minors, were warranted special protection by the courts. Unlike the other applicants, the first applicant could not succeed before the civil courts without a legally relevant motion. As she at no time brought such a motion her subsequent complaint to the Constitutional Court was unsuccessful. 30. The Government further submitted that adequate redress had been afforded to the second, third and fourth applicants through the Constitutional Court ’ s decision of 9 July 2003, in which it held in substance that the failure of the lower courts to meet the positive obligation to protect vulnerable minors had violated their rights under Articles 3 and 8 of the Convention. They submitted that redress did not consist exclusively in the provision of financial satisfaction. Rather, they argued that in the event of a violation of Article 2 or 3 of the Convention, compensation of non-pecuniary damage is only one of the possible remedies ( Keenan v. the United Kingdom, no. 27229/95, § 130, ECHR 2 001 ‑ III). In the present case, the Constitutional Court considered the specific circumstances of the case and concluded that the finding of a violation amounted to sufficient satisfaction. In particular, the court noted that the first applicant had contributed to any injury incurred by failing to file a motion in the terms directed by the Regional Court. Moreover, the Government submitted that by the date of the Constitutional Court decision, the applicants ’ husband/father had been sentenced to four years ’ imprisonment and Article 76 of the Code of Civil Procedure had been amended to specify that the courts had jurisdiction to order that a person suspected of violence could not enter a particular house or apartment. 31. The first applicant submitted that the remedy identified by the Government, namely an order that her former husband abstain from inappropriate behaviour towards her and the second, third and fourth applicants, did not amount to an effective remedy because it would not have afforded sufficient protection to her or her children. As the threat of a significant prison sentence failed previously to deter her former husband from “inappropriate behaviour”, it was not reasonable to conclude that the interim measure would have afforded her sufficient protection. 32. The second, third and fourth applicants submitted that they had not lost their victim status as the national authorities had not afforded them adequate redress for the breach of their Convention rights. In particular, they submitted that in similar cases the Constitutional Court had frequently, and almost without exception, granted applicants appropriate financial satisfaction. 33. The Court recalls that it is incumbent on a Government claiming non-exhaustion to satisfy the Court that there was an effective remedy available in theory and in practice at the relevant time which was accessible, capable of providing redress in respect of the applicant ’ s complaints and offering reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV). In view of the comments made by the Regional Court, it would appear that the first applicant would have had a reasonable prospect of success had she applied for an interim measure ordering her former husband to refrain from any inappropriate behaviour. The Court is not persuaded, however, that such an interim measure would have provided adequate redress in respect of the first applicant ’ s claims. She was concerned that her former husband, who at the time stood accused of physically assaulting both her and her children and of sexually abusing one of her daughters, still had a legal right to enter and reside in the rented property which she shared with the children. She therefore requested an interim order excluding him from the property. An order requiring him to refrain from inappropriate behaviour towards her or the children would have afforded substantially weaker protection than that originally sought. In fact, all that the order would have required of the first applicant ’ s former husband was that he refrained from doing acts already prohibited by the criminal law, which previously had failed to provide an adequate deterrent. The Court therefore finds that an application for such an interim measure did not constitute an effective domestic remedy for the purposes of Article 35 § 1 of the Convention. The first applicant has therefore exhausted all effective domestic remedies. 34. With regard to the second, third and fourth applicants, the Court recalls that the nature of the right at stake has implications for the type of remedy the State is required to provide. Where violations of the rights enshrined in Articles 2 and 3 are alleged, compensation for pecuniary and non-pecuniary damage should in principle be part of the range of redress available (see Öneryıldız v. Turkey [GC], no. 48939/99, § 147, ECHR 2004 ‑ XII; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 97, ECHR 2002 ‑ II; Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001 ‑ V; and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001-V). 35. In the present case the State provided a remedy through which compensation for non-pecuniary damage was, at least in principle, part of the redress available. Nevertheless, having found a violation of the second, third and fourth applicants ’ rights under Articles 16 § 2 (prohibition of torture, inhuman or degrading treatment or punishment) and 21 §§ 2 and 3 (inviolability of home) of the Constitution as well as their rights under Article 19 of the Convention on the Rights of the Child, which obliges the Contracting Parties to take appropriate measures to protect children from all forms of physical or mental violence, including sexual abuse, the Constitutional Court declined to award financial compensation, finding instead that the identification of a violation alone amounted to adequate redress. 36. The Court is not persuaded by the reasons proffered by the Government for the decision not to award financial compensation to the second, third and fourth applicants. In view of the Constitutional Court ’ s finding that the lower courts could have – and should have – granted the original application made by the first applicant, and this Court ’ s finding that an application for an interim measure in the terms suggested by the Regional Court did not constitute an effective remedy, the Court finds little force in the Government ’ s submission that any subsequent injury sustained by the applicants was at least in part the first applicant ’ s responsibility for failing to make a second application. Moreover, the conviction of the second, third and fourth applicants ’ father more than two years after the first application was filed on 21 May 2003 and the subsequent amendment to the Code of Criminal Procedure in January 2003 did not amount to adequate redress for three minors who were forced to leave the family home because the State failed to offer them protection from an abusive parent for up to two years. 37. The Court therefore finds that as a result of the Constitutional Court ’ s failure to award financial compensation to the second, third and fourth applicant, they have not obtained adequate redress for the violation of their rights under Articles 3 and 8 of the Convention. 38. The Court further notes that the application is not inadmissible on any other grounds. The application must therefore be declared admissible. B. Merits 39. The Government have admitted that the domestic authorities failed to take appropriate measures to protect the second, third and fourth applicants from ill-treatment in violation of Article 3 of the Convention. The Government have further admitted that the authorities failed to meet the positive obligation to respect the family and private lives of the second, third and fourth applicants. 40. The Court therefore finds that the respondent State failed to discharge the positive obligation to protect the rights of the second, third and fourth applicants under Articles 3 and 8 of the Convention. 41. The first applicant denied that her rights under Articles 3 and 8 were adequately protected by the State 42. The Government, on the other hand, submitted that she had failed to obtain protection from her former husband because she wrongly formulated the claim of her motion. By contrast, all of her subsequent applications for protection were successful. On 7 July 2003, following an amendment to the law, an interim measure was granted forbidding her former husband from entering the apartment and subsequently, on 10 December 2004, the right to the joint lease on the apartment was cancelled. In any case, on 18 June 2003 the first applicant ’ s former husband was convicted of cruelty towards her and the children and was sentenced to over four years in prison. Consequently, the Government submit that the first applicant was provided with effective protection against ill-treatment at the hands of her former husband and against any interference with her right to respect for her private and home life. 43. The Court has already found that the alternate measure proposed by the Regional Court would not have afforded the applicant adequate protection against her former husband. The subsequent orders relied on by the Government were only granted in July 2003 and December 2004. The applicant could not have brought the application for an interim measure forbidding her former husband from entering the apartment until after the relevant law was amended in January 2003. It is not clear why the order severing the tenancy was not granted until December 2004 when the divorce was finalised in May 2002, or indeed whether the fault for this delay lies with the first applicant or the domestic court. In any case the first applicant was not in a position to apply to sever the tenancy until her divorce was finalised in May 2002, approximately a year after the allegations were first brought against her former husband. Given the nature and severity of the allegations, the first applicant and her children required protection immediately, and not a year or two years after the allegations first came to light. The Court finds that during this period no effective remedy was open to the first applicant by which she could secure protection for herself and her children against the acts of her former husband. 44. In relation to the second, third and fourth applicants, the Government admitted that if they were victims for the purposes of Article 35 § 1, there had been a failure to protect them which resulted in a violation of their rights under Articles 3 and 8 of the Convention. In relation to the first applicant, the Government argued that the State had offered her adequate protection against her former husband. The Government have not, however, suggested that the first applicant was not subjected to treatment which reached the threshold of Articles 3 and 8. Therefore, in view of the Court ’ s finding that the State did not offer her adequate protection against her former husband, the Court finds the respondent State failed to discharge the positive obligation to protect the rights of the first applicant under Articles 3 and 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 45. The applicants alleged that the facts of the case also gave rise to a violation of Article 5 § 1 of the Convention. 46. The Court has examined this complaint but finds, in the light of all the material in its possession and in so far as the matters complained of are within its competence, that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 47. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49. The applicants claimed the following sums in respect of non-pecuniary damage : The first applicant: EUR 16, 596.96; The second applicant: EUR 33,19 3.92; The third applicant: EUR 23,235.74; The fourth applicant: EUR 23,235.74. 50. The Government submitted that the claims were overstated and did not reflect the true subject value of the claims. 51. While the Court has found a violation of Article 3 of the Convention in respect of each of the four applicants, the violation was breach of a positive obligation to take adequate steps to protect the applicants. As a consequence, the applicants had to leave their home and relocate elsewhere. There is no indication that they subsequently were subjected to further ill-treatment or abuse. 52. Against this background, the Court finds that the circumstances justify the making of an award substantially lower than that claimed by the applicants. Moreover, it sees no basis for distinguishing between the applicants in respect of the quantum of the award. They are a family unit and the violation affected them collectively and equally. 53. The Court therefore awards the applicants jointly EUR 8, 000 in respect of non-pecuniary damage. B. Costs and expenses 54. The applicants also claimed EUR 650.60 for the costs and expenses incurred before the Constitutional Court and EUR 1, 437.8 3 for those incurred before the Court. 55. The Government submitted that the applicants have not provided evidence to prove that they actually paid the sums claimed to their advocate. Moreover, the Government submitted that the amount charged by the advocate and claimed by the applicants was overstated. 56. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Provided that the costs have in fact been incurred, it is not necessary for the applicant to demonstrate that they have been paid to the advocate. In the present case, the advocate has submitted a bill and the Court is satisfied that the costs set out therein were incurred in the course of proceedings before this Court and the Constitutional Court. The Court therefore considers it reasonable to award the applicants jointly the sum of EUR 2, 000 covering costs under all heads. C. Default interest 57. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that Slovakia had failed to provide the first applicant and her children with the immediate protection required against her husband’s violence, in violation of Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to private and family life) of the Convention. It observed that, given the nature and severity of the allegations, the first applicant and the children had required protection immediately, not one or two years later. The first applicant had further been unable to apply to sever the tenancy until her divorce was finalised in May 2002, or to apply for an order excluding her former husband from the matrimonial home until after the law was amended in January 2003. She had therefore been without effective protection for herself and the children during the interim. |
803 | Right to a fair trial (Article 6 of the Convention) | II. RELEVANT DOMESTIC LAW A. Legal capacity 46. Under Article 21 of the Civil Code of the Russian Federation of 1994, any individual aged 18 or over has, as a rule, full legal capacity ( дееспособность ), which is defined as “the ability to acquire and enjoy civil rights, create and fulfil civil obligations by his own acts”. Under Article 22 of the Civil Code legal capacity can be limited, but only on the grounds defined by law and within a procedure prescribed by law. 47. Under Article 29 of the Civil Code, a person who cannot understand or control his or her actions as a result of a mental illness may be declared legally incapable by the court and placed in the care of a guardian ( опека ). All legal transactions on behalf of the incapacitated person are concluded by his guardian. The incapacitated person can be declared fully capable if the grounds on which he or she was declared incapable cease to exist. 48. Article 30 of the Civil Code provides for partial limitation of legal capacity. If a person ’ s addiction to alcohol or drugs is creating serious financial difficulties for his family, he can be declared partially incapable. That means that he is unable to conclude large-scale transactions. He can, however, dispose of his salary or pension and make small transactions, under the control of his guardian. 49. Article 135 § 1 of the Code of Civil Procedure of 2002 establishes that a civil claim lodged by a legally incapable person should be returned to him without examination. 50. Article 281 of the same Code establishes the procedure for declaring a person incapable. A request for incapacitation of a mentally ill person can be brought before a first-instance court by a family member of the person concerned. On receipt of the request, the judge must commission a forensic psychiatric examination of the person concerned. 51. Article 284 of the Code provides that the incapacitation request should be examined in the presence of the person concerned, the plaintiff, the prosecutor and a representative of the guardianship office ( орган опеки и попечительства ). The person whose legal capacity is being examined by the court is to be summoned to the court hearing, unless his state of health prohibits him from attending it. 52. Article 289 of the Code provides that full legal capacity can be restored by the court at the request of the guardian, a close relative, the guardianship office or the psychiatric hospital, but not of the person declared incapable himself. B. Confinement to a psychiatric hospital 53. The Psychiatric Assistance Act of 2 July 1992, as amended (“the Act ”), provides that any recourse to psychiatric aid should be voluntary. However, a person declared fully incapable may be subjected to psychiatric treatment at the request or with the consent of his official guardian ( section 4 of the Act ). 54. Section 5 (3) of the Act provides that the rights and freedoms of persons with mental illnesses cannot be limited solely on the ground of their diagnosis, or the fact that they have been subjected to treatment in a psychiatric hospital. 55. Under section 5 of the Act, a patient in a psychiatric hospital can have a legal representative. However, pursuant to point 2 of section 7, the interests of a person declared fully incapable are represented by his official guardian. 56. Section 28 (3) and (4) of the Act (“Grounds for hospitalisation”) provides that a person declared incapable can be subjected to hospitalisation in a psychiatric hospital at the request of his guardian. This hospitalisation is regarded as voluntary and does not require approval by the court, as opposed to non-voluntary hospitalisation ( sections 39 and 33 of the Act ). 57. Section 37(2) of the Act establishes the list of rights of a patient in a psychiatric hospital. In particular, the patient has the right to communicate with his lawyer without censorship. However, under section 37(3) the doctor may limit the applicant ’ s rights to correspond with other persons, have telephone conversations and meet visitors. 58. Section 47 of the Act provides that doctors ’ actions can be appealed against before the court. III. RELEVANT INTERNATIONAL DOCUMENTS 59. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 4 on principles concerning the legal protection of incapable adults. The relevant provisions read as follows. Principle 2 – Flexibility in legal response “ 1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable a suitable legal response to be made to different degrees of incapacity and various situations. ... 4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned. ... ” Principle 3 – Maximum preservation of capacity “ 1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned. 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ... ” Principle 6 – Proportionality “ 1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned. 2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ” Principle 13 – Right to be heard in person “ The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity. ” Principle 14 – Duration, review and appeal “ 1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. ... 3. There should be adequate rights of appeal .” THE LAW 60. The Court notes that the applicant submitted several complaints under different Convention provisions. Those complaints relate to his incapacitation, placement in a psychiatric hospital, inability to obtain a review of his status, inability to meet with his lawyer, interference with his correspondence, involuntary medical treatment, and so on. The Court will examine these complaints in chronological sequence. Thus, the Court will start with the complaints related to the incapacitation proceedings – the episode which gave rise to all the subsequent events – and then examine the applicant ’ s hospitalisation and the complaints stemming from it. I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE INCAPACITATION PROCEEDINGS 61. The applicant complained that he had been deprived of his legal capacity as a result of proceedings which had not been “fair” within the meaning of Article 6 of the Convention. The relevant parts of Article 6 § 1 provide as follows : “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. The parties ’ submissions 62. The Government contended that the proceedings before the Vasileostrovskiy District Court had been fair. Under Russian law, a request to declare a person legally incapable may be lodged by a close relative of the person suffering from a mental disorder. In the present case it was Ms Shtukaturova, the applicant ’ s mother, who had filed such a request. The court ordered a psychiatric examination of the applicant. Having examined the applicant, the doctors concluded that he was unable to understand or control his actions. Given the applicant ’ s medical condition, the court decided not to summon him to the hearing. However, in compliance with Article 284 of the Code of Civil Procedure, a prosecutor and a representative of the psychiatric hospital were present at the hearing. Therefore, the applicant ’ s procedural rights were not breached. 63. The applicant maintained that the proceedings before the first ‑ instance court had been unfair. The judge had not explained why she changed her mind and considered that the applicant ’ s personal presence had not been necessary (see paragraphs 11 et seq. above). The court had decided on the applicant ’ s incapacity without hearing or seeing him, or obtaining any submissions from him. The court based its decision on the written medical report, which the applicant had not seen and had had no opportunity to challenge. The prosecutor who participated in the hearing on 28 December 2004 also supported the application, without having seen the applicant prior to the hearing. The Vasileostrovskiy District Court also failed to question the applicant ’ s mother, who had lodged the application for incapacity. In sum, the court failed to take even minimal measures in order to ensure an objective assessment of the applicant ’ s mental condition. Further, the applicant maintained that he was unable to challenge the judgment of 28 December 2004 because, under Russian law, he lacked standing to lodge an appeal. B. Admissibility 64. The parties did not dispute the applicability of Article 6, under its “civil” head, to the proceedings in issue, and the Court does not see any reason to hold otherwise (see Winterwerp v. the Netherlands, 24 October 1979, § 73, Series A no. 33). 65. The Court notes that the applicant ’ s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. C. Merits 1. General principles 66. In most of the previous cases before the Court involving “persons of unsound mind”, the domestic proceedings concerned their detention and were thus examined under Article 5 of the Convention. However, the Court has consistently held that the “procedural” guarantees under Article 5 §§ 1 and 4 are broadly similar to those under Article 6 § 1 of the Convention (see, for instance, Winterwerp, cited above, § 60; Sanchez-Reisse v. Switzerland, 21 October 1986, Series A no. 107; Kampanis v. Greece, 13 July 1995, Series A no. 318-B; and Ilijkov v. Bulgaria, no. 33977/96, § 103, 26 July 2001 ). Therefore, in deciding whether the incapacitation proceedings in the present case were “fair”, the Court will have regard, mutatis mutandis, to its case-law under Article 5 § 1 (e) and Article 5 § 4 of the Convention. 67. The Court observes that in deciding whether an individual should be detained as a “ person of unsound mind ”, the national authorities are to be recognised as having a certain margin of appreciation. It is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court ’ s task is to review under the Convention the decisions of those authorities (see Luberti v. Italy, 23 February 1984, § 27, Series A no. 75 ). 68. In the context of Article 6 § 1 of the Convention, the Court assumes that in cases involving a mentally ill person the domestic courts should also enjoy a certain margin of appreciation. Thus, for example, they can make the relevant procedural arrangements in order to secure the proper administration of justice, protection of the health of the person concerned, and so on. However, such measures should not affect the very essence of the applicant ’ s right to a fair trial as guaranteed by Article 6 of the Convention. In assessing whether or not a particular measure, such as exclusion of the applicant from a hearing, was necessary, the Court will take into account all relevant factors (such as the nature and complexity of the issue before the domestic courts, what was at stake for the applicant, whether his appearance in person represented any threat to others or to himself, and so on ). 2. Application to the present case 69. It is not disputed that the applicant was unaware of the request for incapacitation made by his mother. Nothing suggests that the court notified the applicant proprio motu about the proceedings (see paragraph 10 above). Further, as follows from the report of 12 November 2004 (see paragraph 13 above), the applicant did not realise that he was being subjected to a forensic psychiatric examination. The Court concludes that the applicant was unable to participate in the proceedings before the Vasileostrovskiy District Court in any form. It remains to be ascertained whether, in the circumstances, this was compatible with Article 6 of the Convention. 70. The Government argued that the decisions taken by the national judge had been lawful in domestic terms. However, the crux of the complaint is not the domestic legality but the “fairness” of the proceedings from the standpoint of the Convention and the Court ’ s case-law. 71. In a number of previous cases ( concerning compulsory confinement in hospital) the Court confirmed that a person of unsound mind must be allowed to be heard either in person or, where necessary, through some form of representation – see, for example, Winterwerp, cited above, § 60. In Winterwerp, the applicant ’ s freedom was at stake. However, in the present case the outcome of the proceedings was at least equally important for the applicant: his personal autonomy in almost all areas of his life was in issue, including the eventual limitation of his liberty. 72. Further, the Court notes that the applicant played a double role in the proceedings: he was an interested party, and, at the same time, the main object of the court ’ s examination. His participation was therefore necessary not only to enable him to present his own case, but also to allow the judge to form her personal opinion about the applicant ’ s mental capacity (see, mutatis mutandis, Kovalev v. Russia, no. 78145/01, §§ 35 -37, 10 May 2007). 73. The applicant was indeed an individual with a history of psychiatric problems. From the materials of the case, however, it appears that despite his mental illness he had been a relatively autonomous person. In such circumstances it was indispensable for the judge to have at least a brief visual contact with the applicant, and preferably to question him. The Court concludes that the decision of the judge to decide the case on the basis of documentary evidence, without seeing or hearing the applicant, was unreasonable and in breach of the principle of adversarial proceedings enshrined in Article 6 § 1 (see Mantovanelli v. France, 18 March 1997, § 35, Reports of Judgments and Decisions 1997 - II ). 74. The Court has examined the Government ’ s argument that a representative of the hospital and the district prosecutor attended the hearing on the merits. However, in the Court ’ s opinion, their presence did not make the proceedings truly adversarial. The representative of the hospital acted on behalf of an institution which had prepared the report and was referred to in the judgment as an “interested party”. The Government did not explain the role of the prosecutor in the proceedings. In any event, from the record of the hearing it appears that both the prosecutor and the hospital representative remained passive during the hearing, which, moreover, lasted only ten minutes. 75. Finally, the Court observes that it must always assess the proceedings as a whole, including the decision of the appellate court (see C.G. v. the United Kingdom, no. 43373/98, § 35, 19 December 2001). The Court notes that in the present case the applicant ’ s appeal was disallowed without examination on the ground that the applicant had no legal capacity to act before the courts (see paragraph 41 above). Regardless of whether or not the rejection of his appeal without examination was acceptable under the Convention, the Court merely notes that the proceedings ended with the first - instance court judgment of 28 December 2004. 76. The Court concludes that in the circumstances of the present case the proceedings before the Vasileostrovskiy District Court were not fair. There has accordingly been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE INCAPACITATION OF THE APPLICANT 77. The applicant complained that, by depriving him of his legal capacity, the authorities had breached Article 8 of the Convention. Article 8 provides : “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties ’ submissions 1. The Government 78. The Government admitted that the judgment depriving the applicant of his legal capacity entailed a number of limitations in the area of private life. However, they claimed that the applicant ’ s rights under Article 8 had not been breached. Their submissions can be summarised as follows. Firstly, the measure adopted by the court was aimed at the protection of the interests and health of other persons. Further, the decision was taken in conformity with the substantive law, namely on the basis of Article 29 of the Civil Code of the Russian Federation. 2. The applicant 79. The applicant insisted in his initial complaint that Article 8 had been breached in his case. He maintained that Article 29 of the Civil Code, which had served as a basis for depriving him of legal capacity, was not formulated with sufficient precision. The law permitted the deprivation of an individual ’ s legal capacity if that person “could not understand the meaning of his actions or control them”. However, the law did not explain what kind of “actions” the applicant should understand or control, or how complex these actions should be. In other words, there was no legal test to establish the severity of the reduction in cognitive capacity which called for full deprivation of legal capacity. The law was clearly deficient in this respect; it failed to protect mentally ill people from arbitrary interference with their right to private life. Therefore, the interference with his private life had not been lawful. 80. The applicant further argued that the interference did not pursue a legitimate aim. The authorities did not seek to protect national security, public safety or the economic well-being of the country, or to prevent disorder or crime. As to the protection of the health and morals of others, there was no indication that the applicant represented a threat to the rights of third parties. Finally, with regard to the applicant himself, the Government did not suggest that the incapacitation had had a therapeutic effect on the applicant. Nor was there any evidence that the authorities had sought to deprive the applicant of his capacity because he would otherwise have carried out actions which would result in a deterioration of his health. With regard to his own pecuniary interests, the protection of a person ’ s own rights is not a ground listed in Article 8 § 2, and it cannot therefore serve as a justification for interfering with a person ’ s rights as protected under Article 8 § 1 of the Convention. In sum, the interference with his private life did not pursue any of the legitimate aims listed in Article 8 § 2 of the Convention. 81. Finally, the applicant submitted that the interference had not been “necessary in a democratic society”, as there had been no need to restrict his legal capacity. The Vasileostrovskiy District Court did not adduce any reason for its decision: there was no indication that the applicant had had problems managing his property in the past, was unable to work, abused his employment, and so on. The medical report was not corroborated by any evidence, and the court did not assess the applicant ’ s past behaviour in any of the areas where it restricted his legal capacity. 82. Even if the Vasileostrovskiy District Court was satisfied that the applicant could not act in a certain area of life, it could have restricted his capacity in that specific area, without going further. However, Russian law, unlike the legislation in many other European countries, did not allow a partial limitation of one ’ s legal capacity, but provided only for full incapacitation. The restricted capacity option could be used solely for those who abused drugs or alcohol. In such circumstances the court should have refused to apply a measure as drastic as full incapacitation. Instead, the court preferred to strip bluntly the applicant of all of his decision-making powers for an unlimited period of time. B. Admissibility 83. The parties agreed that the judgment of 28 December 2004 amounted to an interference in the applicant ’ s private life. The Court observes that Article 8 “secure [ s ] to the individual a sphere within which he can freely pursue the development and fulfilment of his personality” (see Brüggemann and Scheuten v. Germany, no. 6959/75, Commission ’ s report of 12 July 1977, Decisions and Reports 10, p. 115, § 55). The judgment of 28 December 2004 deprived the applicant of his capacity to act independently in almost all areas of life: he was no longer able to sell or buy any property on his own, to work, to travel, to choose his place of residence, to join associations, to marry, and so on. Even his liberty could henceforth have been limited without his consent and without any judicial supervision. In sum, the Court concludes that the deprivation of legal capacity amounted to an interference with the private life of the applicant (see Matter v. Slovakia, no. 31534/96, § 68, 5 July 1999). 84. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 85. The Court reiterates that any interference with an individual ’ s right to respect for his private life will constitute a breach of Article 8 unless it was “in accordance with the law”, pursued a legitimate aim or aims under paragraph 2 and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought. 86. The Court took note of the applicant ’ s contention that the measure applied to him had not been lawful and had not pursued any legitimate aim. However, in the Court ’ s opinion it is not necessary to examine these aspects of the case, since the decision to incapacitate the applicant was in any event disproportionate to the legitimate aim invoked by the Government for the reasons set out below. 1. General principles 87. The applicant claimed that full incapacitation had been an inadequate response to the problems he experienced. Indeed, under Article 8 the authorities must strike a fair balance between the interests of a person of unsound mind and the other legitimate interests concerned. However, as a rule, in such a complex matter as determining somebody ’ s mental capacity, the authorities should enjoy a wide margin of appreciation. This is mostly explained by the fact that the national authorities have the benefit of direct contact with the persons concerned and are therefore particularly well placed to determine such issues. The task of the Court is rather to review under the Convention the decisions taken by the national authorities in the exercise of their powers in this respect (see, mutatis mutandis, Bronda v. Italy, 9 June 1998, § 59, Reports 1998-IV). 88. At the same time, the margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake (see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000 - VIII ). A stricter scrutiny is called for in respect of very serious limitations in the sphere of private life. 89. Further, the Court reiterates that, whilst Article 8 of the Convention contains no explicit procedural requirements, “the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8” ( see Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004). The extent of the State ’ s margin of appreciation thus depends on the quality of the decision-making process. If the procedure was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism (see, mutatis mutandis, Sahin v. Germany, no. 30943/96, §§ 46 et seq., 11 October 2001 ). 2. Application to the present case 90. Firstly, the Court notes that the interference with the applicant ’ s private life was very serious. As a result of his incapacitation, the applicant became fully dependent on his official guardian in almost all areas of his life. Furthermore, “full incapacitation” was applied for an indefinite period and could not, as the applicant ’ s case shows, be challenged other than through the guardian, who herself opposed any attempts to discontinue the measure (see also paragraph 52 above ). 91. Secondly, the Court has already found that the proceedings before the Vasileostrovskiy District Court were procedurally flawed. Thus, the applicant did not take part in the court proceedings and was not even examined by the judge in person. Further, the applicant was unable to challenge the judgment of 28 December 2004, since the St Petersburg City Court refused to examine his appeal. In sum, his participation in the decision-making process was reduced to zero. The Court is particularly struck by the fact that the only hearing on the merits in the applicant ’ s case lasted ten minutes. In such circumstances it cannot be said that the judge had “had the benefit of direct contact with the persons concerned”, which normally would call for judicial restraint on the part of this Court. 92. Thirdly, the Court must examine the reasoning of the judgment of 28 December 2004. In doing so, the Court will have in mind the seriousness of the interference complained of, and the fact that the court proceedings in the applicant ’ s case were perfunctory at best (see above). 93. The Court notes that the District Court relied solely on the findings of the medical report of 12 November 2004. That report referred to the applicant ’ s aggressive behaviour, negative attitudes and “antisocial” lifestyle; it concluded that the applicant suffered from schizophrenia and was thus unable to understand his actions. At the same time, the report did not explain what kind of actions the applicant was incapable of understanding and controlling. The incidence of the applicant ’ s illness is unclear, as are the possible consequences of the applicant ’ s illness for his social life, health, pecuniary interests, and so on. The report of 12 November 2004 was not sufficiently clear on these points. 94. The Court does not cast doubt on the competence of the doctors who examined the applicant and accepts that the applicant was seriously ill. However, in the Court ’ s opinion the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation. By analogy with the cases concerning deprivation of liberty, in order to justify full incapacitation the mental disorder must be “ of a kind or degree ” warranting such a measure ( see, mutatis mutandis, Winterwerp, cited above, § 39 ). However, the questions to the doctors, as formulated by the judge, did not concern “the kind and degree” of the applicant ’ s mental illness. As a result, the report of 12 November 2004 did not analyse the degree of the applicant ’ s incapacity in sufficient detail. 95. It appears that the existing legislative framework did not leave the judge any other choice. The Russian Civil Code distinguishes between full capacity and full incapacity, but it does not provide for any “borderline” situation other than for drug or alcohol addicts. The Court refers in this respect to the principles formulated by Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe, cited above in paragraph 59. Although these principles have no force of law for this Court, they may define a common European standard in this area. Contrary to these principles, Russian legislation did not provide for a “tailor-made response ”. As a result, in the circumstances the applicant ’ s rights under Article 8 were restricted more than was strictly necessary. 96. In sum, having examined the decision-making process and the reasoning behind the domestic decisions, the Court concludes that the interference with the applicant ’ s private life was disproportionate to the legitimate aim pursued. There was, therefore, a breach of Article 8 of the Convention on account of the applicant ’ s full incapacitation. III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 97. Under Article 5 § 1 of the Convention the applicant complained that his placement in the psychiatric hospital had been unlawful. The relevant parts of Article 5 provide : “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e) the lawful detention of persons ... of unsound mind ... ” A. The parties ’ submissions 1. The Government 98. The Government claimed that the applicant ’ s placement in the hospital had been lawful. Under sections 28 and 29 of the Psychiatric Assistance Act of 2 July 1992, a person can be placed in a psychiatric hospital pursuant to a court order or at the request of the doctor, provided that the person suffers from a mental disorder. The law distinguishes between non-voluntary and voluntary confinement in hospital. The latter does not require a court order and may be authorised by the official guardian, if the person is legally incapable. The applicant was placed in the hospital at the request of his official guardian in relation to a worsening of his mental condition. In such circumstances, there was no need for a court order authorising the confinement. 99. The Government further indicated that section 47 of the Psychiatric Assistance Act provided for administrative and judicial remedies against the acts or negligence of medical personnel. However, under paragraph 2 of Article 31 of the Civil Code of the Russian Federation, if a person is legally incapable, it is his official guardian who should act in his stead before the administrative bodies or the courts. The applicant ’ s official guardian was his mother, who did not lodge any complaint. The prosecutor ’ s office, after an inquiry, concluded that the applicant ’ s rights had not been breached. Therefore, the domestic law provided effective remedies to protect the applicant ’ s rights. 100. As to compensation for damages caused by the confinement in a psychiatric hospital, this is only recoverable if there was a fault on the part of the domestic authorities. The Government asserted that the medical personnel had acted lawfully. 2. The applicant 101. The applicant maintained his claims. Firstly, he alleged that his placement in hospital had amounted to a deprivation of his liberty. Thus, he was placed in a locked facility. After he attempted to flee the hospital in January 2006, he was tied to his bed and given an increased dose of sedative medication. He was not allowed to communicate with the outside world until his discharge. Finally, the applicant subjectively perceived his confinement in the hospital as a deprivation of liberty. Contrary to what the Government suggested, he had never regarded his detention as consensual and had unequivocally objected to it throughout the entire duration of his stay in the hospital. 102. Further, the applicant claimed that his detention in the hospital was not “in accordance with a procedure prescribed by law”. Thus, under Russian law, his hospitalisation was regarded as voluntary confinement, regardless of his opinion, and, consequently, none of the procedural safeguards usually required in cases of non-voluntary hospitalisation applied to him. There should, however, be some procedural safeguards in place, especially where the person concerned clearly expressed his disagreement with his guardian ’ s decision. In the present case the authorities did not assess the applicant ’ s capacity to make an independent decision of a specific kind at the time of his hospitalisation. They relied on the applicant ’ s status as a legally incapable person, no matter how far removed in time the court decision about his global capacity might be. In the present case it was made more than ten months prior to the hospitalisation. 103. Furthermore, Russian law did not sufficiently reflect the fact that a person ’ s capacity could change over time. There was no mandatory periodic review of the capacity status, nor was there a possibility for the person under guardianship to request such a review. Even assuming that, at the time of the initial court decision declaring him incapable, the applicant ’ s capacity was so badly impaired that he could not decide for himself the question of hospitalisation, his condition might have changed in the meantime. B. Admissibility 104. The Government may be understood as claiming that the applicant ’ s hospitalisation was, in domestic terms, voluntary, and, as such, did not fall under the scenario of “deprivation of liberty” within the meaning of Article 5 of the Convention. However, the Court cannot subscribe to this thesis. 105. It reiterates that, in order to determine whether there has been a deprivation of liberty, the starting - point must be the concrete situation of the individual concerned. Account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question (see Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39, and Ashingdane v. the United Kingdom, 28 May 1985, § 41, Series A no. 93 ). 106. The Court further notes that the notion of deprivation of liberty within the meaning of Article 5 § 1 does not only comprise the objective element of a person ’ s confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his or her liberty if, as an additional subjective element, he or she had not validly consented to the confinement in question (see, mutatis mutandis, H.M. v. Switzerland, no. 39187/98, § 46, ECHR 2002 - II ). 107. The Court observes in this respect that the applicant ’ s factual situation at the hospital was largely undisputed. The applicant was confined in the hospital for several months, he was not free to leave and his contact with the outside world was seriously restricted. As to the “subjective” element, it was disputed between the parties whether the applicant had consented to his stay in the clinic. The Government mostly relied on the legal construction of “voluntary confinement”, whereas the applicant referred to his own perception of the situation. 108. The Court notes in this respect that, indeed, the applicant lacked de jure legal capacity to decide for himself. However, this does not necessarily mean that the applicant was de facto unable to understand his situation. Firstly, the applicant ’ s own behaviour at the time of his confinement proves the contrary. Thus, on several occasions the applicant requested his discharge from hospital, contacted the hospital administration and a lawyer with a view to obtaining his release, and once attempted to escape from the hospital (see, a fortiori, Storck v. Germany, no. 61603/00, ECHR 2005-V, where the applicant consented to her stay in the clinic but then attempted to escape). Secondly, it follows from the Court ’ s above conclusions that the findings of the domestic courts on the applicant ’ s mental condition were questionable and quite remote in time (see paragraph 96 above). 109. In sum, even though the applicant was legally incapable of expressing his opinion, the Court is unable to accept in the circumstances the Government ’ s view that the applicant agreed to his continued stay in the hospital. The Court therefore concludes that the applicant was deprived of his liberty by the authorities within the meaning of Article 5 § 1 of the Convention. 110. The Court further notes that although the applicant ’ s detention was requested by the applicant ’ s guardian, a private person, it was implemented by a State-run institution – a psychiatric hospital. Therefore, the responsibility of the authorities for the situation complained of was engaged. 111. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 112. The Court accepts that the applicant ’ s detention was “lawful”, if this term is construed narrowly, in the sense of formal compatibility of the detention with the procedural and material requirements of the domestic law. It appears that the only condition for the applicant ’ s detention was the consent of his official guardian, his mother, who was also the person who solicited the applicant ’ s placement in the hospital. 113. However, the Court observes that the notion of “lawfulness” in the context of Article 5 § 1 (e) also has a broader meaning. “ The notion underlying the term [ ‘ procedure prescribed by law ’ ] ... is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary” ( see Winterwerp, cited above, § 45). In other words, the detention cannot be considered “lawful” within the meaning of Article 5 § 1 if the domestic procedure does not provide sufficient guarantees against arbitrariness. 114. In its Winterwerp judgment (cited above), the Court set out three minimum conditions which have to be satisfied in order for there to be “ the lawful detention of a person of unsound mind ” within the meaning of Article 5 § 1 (e): except in emergency cases, the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder. 115. Turning to the present case, the Court notes that it was submitted on behalf of the applicant that his deprivation of liberty had been arbitrary, because he had not been reliably shown to be of unsound mind at the time of his confinement. The Government submitted nothing to refute this argument. Thus, the Government did not explain what made the applicant ’ s mother request his hospitalisation on 4 November 2005. Further, the Government did not provide the Court with any medical evidence concerning the applicant ’ s mental condition at the moment of his admission to the hospital. It appears that the decision to hospitalise him relied merely on the applicant ’ s legal status, as had been defined ten months earlier by the court, and probably on his medical history. Indeed, it is inconceivable that the applicant remained in hospital without any examination by specialist doctors. However, in the absence of any supporting documents or submissions by the Government concerning the applicant ’ s mental condition during his placement, the Court has to conclude that it has not been “reliably shown” by the Government that the applicant ’ s mental condition necessitated his confinement. 116. In view of the above, the Court concludes that the applicant ’ s hospitalisation between 4 November 200 5 and 16 May 2006 was not “lawful” within the meaning of Article 5 § 1 (e) of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 117. The applicant complains that he was unable to obtain his release from the hospital. Article 5 § 4, relied on by the applicant, provides : “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. The parties ’ submissions 118. The Government maintained that the applicant had had an effective remedy to challenge his admission to the psychiatric hospital. Thus, he could have applied for release or complained about the actions of the medical staff through his guardian, who represented him before third parties, including the court. Further, the General Prosecutor ’ s Office had carried out a check of the applicant ’ s situation and did not establish any violation of his rights. 119. The applicant claimed that Russian law allowed him to bring court proceedings only through his guardian, who was opposed to his release. B. Admissibility 120. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 121. The Court observes that by virtue of Article 5 § 4, a person of unsound mind compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals before a court to put in issue the “ lawfulness ” – within the meaning of the Convention – of his detention (see Winterwerp, cited above, § 55, and Luberti, cited above, § 31; see also Rakevich v. Russia, no. 5 8973/00, §§ 43 et seq., 28 October 2003 ). 122. This is so in cases where the initial detention was initially authorised by a judicial authority (see X v. the United Kingdom, 5 November 1981, § 52, Series A no. 46 ), and it is a fortiori true in the circumstances of the present case, where the applicant ’ s confinement was authorised not by a court but by a private person, namely the applicant ’ s guardian. 123. The Court accepts that the forms of judicial review may vary from one domain to another, and depend on the type of deprivation of liberty in issue. It is not within the province of the Court to inquire into what would be the best or most appropriate system of judicial review in this sphere. However, in the present case the courts were not involved in deciding on the applicant ’ s detention at any moment and in any form. It appears that Russian law does not provide for automatic judicial review of confinement in a psychiatric hospital in situations such as the applicant ’ s. Further, the review cannot be initiated by the person concerned if that person has been deprived of his or her legal capacity. Such a reading of Russian law follows from the Government ’ s submissions on the matter. In sum, the applicant was prevented from pursuing independently any legal remedy of judicial character to challenge his continued detention. 124. The Government claimed that the applicant could have initiated legal proceedings through his mother. However, that remedy was not directly accessible to him: the applicant fully depended on his mother who had requested his placement in hospital and opposed his release. As to the inquiry carried out by the prosecution authorities, it is unclear whether it concerned the “lawfulness” of the applicant ’ s detention. In any event, a prosecution inquiry as such cannot be regarded as a judicial review satisfying the requirements of Article 5 § 4 of the Convention. 125. The Court notes its findings that the applicant ’ s hospitalisation was not voluntary. Further, the last time that the courts had assessed the applicant ’ s mental capacity was ten months before his admission to hospital. The “incapacitation” court proceedings were seriously flawed, and, in any event, the court never examined the necessity of the applicant ’ s placement in a closed institution. Nor was this necessity assessed by a court at the time of his placement in hospital. In such circumstances the applicant ’ s inability to obtain judicial review of his detention amounted to a violation of Article 5 § 4 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 126. The applicant submitted that the compulsory medical treatment he received in hospital amounted to inhuman and degrading treatment. Furthermore, on one occasion physical restraint was used against him, when he was tied to his bed for more than fifteen hours. Article 3 of the Convention, referred to by the applicant in this respect, provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 127. The Court notes that the complaint under Article 3 relates to two distinct facts: (a) involuntary medical treatment; and (b) the securing of the applicant to his bed after his attempted escape. As regards the second allegation, the Court notes that it was not part of the applicant ’ s initial submissions to the Court and was not sufficiently substantiated. Reference to it appeared only in the applicant ’ s observations in reply to those of the Government. Therefore, this incident falls outside the scope of the present application, and, as such, will not be examined by the Court. 128. It remains to be ascertained, however, whether the medical treatment of the applicant in the hospital amounted to “inhuman and degrading treatment” within the meaning of Article 3. According to the applicant, he was treated with Haloperidol and Chlorpromazine. He described these substances as obsolete medicine with strong and unpleasant side effects. The Court notes that the applicant did not provide any evidence showing that he had actually been treated with this medication. Furthermore, there is no evidence that the medication in question had the unpleasant effects he was complaining of. The applicant does not claim that his health has deteriorated as a result of such treatment. In such circumstances the Court finds that the applicant ’ s allegations in this respect are unsubstantiated. 129. The Court concludes that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 130. The applicant complained under Article 13 of the Convention, taken in conjunction with Articles 6 and 8, that he had been unable to obtain a review of his status as a legally incapable person. Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 131. The Court finds that this complaint is linked to the complaints submitted under Articles 6 and 8 of the Convention, and it should therefore be declared admissible. 132. The Court further notes that, in analysing the proportionality of the measure complained of under Article 8, it took account of the fact that the measure was imposed for an indefinite period of time and could not be challenged by the applicant independently of his mother or other persons empowered by law to seek its withdrawal (see paragraph 90 above). Furthermore, this aspect of the proceedings was considered by the Court in its examination of the overall fairness of the incapacitation proceedings. 133. In these circumstances the Court does not consider it necessary to re-examine this aspect of the case separately through the prism of the “effective remedies” requirement of Article 13. VII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 134. The Court notes that under Article 14 of the Convention the applicant complained about his alleged discrimination. The Court finds that this complaint is linked to the complaints submitted under Articles 6 and 8 of the Convention, and it should therefore be declared admissible. However, in the circumstances and given its findings under Articles 5, 6 and 8 of the Convention, the Court considers that there is no need to examine the complaint under Article 14 of the Convention separately. VIII. COMPLIANCE WITH ARTICLE 34 OF THE CONVENTION 135. The applicant maintained that by preventing him from meeting his lawyer in private for a long period of time despite the measure indicated by the Court under Rule 39 of the Rules of Court, Russia had failed to comply with its obligations under Article 34 of the Convention. Article 34 provides: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Rule 39 of the Rules of Court provides: “1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it. 2. Notice of these measures shall be given to the Committee of Ministers. 3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.” A. The parties ’ submissions 136. The Government maintained that the applicant had not been prevented from exercising his right of individual petition under Article 34 of the Convention. However, he was able to do so only through his mother – his official guardian. Since his mother had never asked Mr Bartenev (the lawyer) to represent her son, he was not his legal representative in the eyes of the domestic authorities. Consequently, the authorities acted lawfully in not allowing him to meet the applicant in hospital. 137. The applicant submitted that his right of individual petition had been breached. Thus, the hospital authorities prevented him from meeting his lawyer, confiscated writing materials from him and prohibited him from making or receiving telephone calls. The applicant was also threatened with the extension of his confinement if he continued his “litigious behaviour”. When the Court indicated an interim measure, the hospital authorities refused to consider the decision of the Court under Rule 39 as legally binding. This position was later confirmed by the Russian courts. As a result, it was virtually impossible for the applicant to work on his case before the European Court during his whole stay in hospital. Moreover, the applicant ’ s lawyer was unable to assess the applicant ’ s condition and collect information about the treatment the applicant was subjected to while in the psychiatric hospital. B. The Court ’ s assessment 1. Compliance with Article 34 before the indication of an interim measure 138. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Akdivar and Others v. Turkey, 16 September 1996, opinion of the Commission, § 105, Reports 1996 - IV; see also Ergi v. Turkey, 28 July 1998, § 105, Reports 1998-IV ). 139. The Court notes that an interference with the right of individual petition may take different forms. Thus, in Boicenco v. Moldova (no. 41088/05, § § 157 et seq., 11 July 2006), the Court found that the refusal by the authorities to let the applicant be examined by a doctor in order to substantiate his claims under Article 41 of the Convention constituted an interference with the applicant ’ s right of individual petition, and thus was incompatible with Article 34 of the Convention. 140. In the present case the ban on contact with his lawyer lasted from the applicant ’ s hospitalisation on 4 November 2005 until his discharge on 16 May 2006. Further, telephone calls and correspondence were also banned for virtually the whole period. Those restrictions made it almost impossible for the applicant to pursue his case before the Court, and thus the application form was completed by the applicant only after his discharge from the hospital. The authorities could not have been ignorant of the fact that the applicant had introduced an application with the Court concerning, inter alia, his confinement in the hospital. In such circumstances the authorities, by restricting the applicant ’ s contact with the outside world to such an extent, interfered with his rights under Article 34 of the Convention. 2. Compliance with Article 34 after the indication of an interim measure 141. The Court further notes that in March 2006 it indicated to the Government an interim measure under Rule 39. The Court requested the Government to allow the applicant to meet his lawyer on the premises of the hospital and under the supervision of the hospital staff. That measure was supposed to ensure that the applicant was able to pursue his case before this Court. 142. The Court is struck by the authorities ’ refusal to comply with that measure. The domestic courts which examined the situation found that the interim measure was addressed to the Russian State as a whole, but not to any of its bodies in particular. The courts concluded that Russian law did not recognise the binding force of an interim measure indicated by the Court. Further, they considered that the applicant could not act without the consent of his mother. Therefore, Mr Bartenev (the lawyer) was not regarded as his lawful representative either in domestic terms, or for the purposes of the proceedings before this Court. 143. Such an interpretation of the Convention is contrary to the Convention. As regards the status of Mr Bartenev, it was not for the domestic courts to determine whether or not he was the applicant ’ s representative for the purposes of the proceedings before the Court – it sufficed that the Court regarded him as such. 144. As to the legal force of an interim measure, the Court wishes to reiterate the following ( Aoulmi v. France, no. 50278/99, § 107, ECHR 2006 ‑ I ) : “ 107. ... [ U ] nder the Convention system, interim measures, as they have consistently been applied in practice, play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted. Accordingly, in these conditions a failure by a respondent State to comply with interim measures will undermine the effectiveness of the right of individual application guaranteed by Article 34 and the State ’ s formal undertaking in Article 1 to protect the rights and freedoms set forth in the Convention 108. Indications of interim measures given by the Court ... permit it not only to carry out an effective examination of the application but also to ensure that the protection afforded to the applicant by the Convention is effective; such indications also subsequently allow the Committee of Ministers to supervise execution of the final judgment. Such measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention ... ” In sum, an interim measure is binding to the extent that non-compliance with it may lead to a finding of a violation under Article 34 of the Convention. For the Court, it makes no difference whether it was the State as a whole or any of its bodies which refused to implement an interim measure. 145. The Court notes in this respect the case of Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, § § 92 et seq., ECHR 2005 ‑ I ), in which the Court analysed the State ’ s non-compliance with an interim measure indicated under Rule 39. The Court concluded that “the obligation set out in Article 34 in fine requires the Contracting States to refrain ... also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure” (§ 102). 146. By not allowing the applicant to communicate with his lawyer, the authorities de facto prevented him from complaining to the Court and this obstacle existed so long as the authorities kept the applicant in hospital. Therefore, the aim of the interim measure indicated by the Court was to avoid a situation “ that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted” (see Aoulmi, loc. cit. ). 147. The Court notes that the applicant was eventually released and met with his lawyer, and was thus able to continue the proceedings before this Court. The Court therefore finally had all the elements to examine the applicant ’ s complaint, despite previous non-compliance with the interim measure. However, the fact that the individual actually managed to pursue his application does not prevent an issue arising under Article 34: should the Government ’ s action make it more difficult for the individual to exercise his right of petition, this amounts to “hindering” his rights under Article 34 ( see Akdivar and Others, cited above, § 105, and Akdivar and Others v. Turkey, 16 September 1996, opinion of the Commission, § 254, Reports 1996-IV ). In any event, the applicant ’ s release was not in any way connected with the implementation of an interim measure. 148. The Court takes note that the Russian legal system may have lacked a legal mechanism for implementing interim measures under Rule 39. However, it does not absolve the respondent State from its obligations under Article 34 of the Convention. In sum, in the circumstances the failure of the authorities to comply with an interim measure under Rule 39 amounted to a breach of Article 34 of the Convention. 3. Conclusion 149. Having regard to the material before it, the Court concludes that, by preventing the applicant for a long period of time from meeting his lawyer and communicating with him, as well as by failing to comply with the interim measure indicated under Rule 39 of the Rules of Court, the Russian Federation was in breach of its obligations under Article 34 of the Convention. IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION 150. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 151. The applicant claimed 85,000 euros in respect of non ‑ pecuniary damage. 152. The Government considered these claims “ fully unsubstantiated and anyway excessive ”. Further, the Government claimed that it was the applicant ’ s mother who was entitled to claim any amounts on behalf of the applicant. 153. The Court notes that the applicant has legal standing in his own right within the Strasbourg proceedings and, consequently, can claim compensation under Article 41 of the Convention. 154. The Court considers that the question of the application of Article 41 is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the Government and the applicant (Rule 75 § 1 of the Rules of Court). | The Court held that there had been a violation of Article 6 (right to a fair trial) of the Convention concerning the proceedings which deprived the applicant of his legal capacity. Having reiterated that, in cases concerning compulsory confinement, a person of unsound mind should be heard either in person or, where necessary, through some form of representation, it observed in particular that the applicant, who appeared to have been a relatively autonomous person despite his illness, had not been given any opportunity to participate in the proceedings concerning his legal capacity. Given the consequences of those proceedings for the applicant’s personal autonomy and indeed liberty, his attendance had been indispensable not only to give him the opportunity to present his case, but also to allow the judge to form an opinion on his mental capacity. Therefore, the decision of December 2004, based purely on documentary evidence, had been unreasonable and in breach of the principle of adversarial proceedings enshrined in Article 6 § 1 of the Convention. |
243 | The definition of idem | THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 49. The applicant complained that no reasons had been given for the judgment delivered by the special Assize Court. He relied on Article 6 § 1 of the Convention, the relevant parts of which provide: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 50. The Government contested that argument. ... B. Merits 1. The parties ’ submissions ( a) The applicant 52. The applicant stated at the outset that personal conviction, which was not the same as arbitrariness or intuition, must be based on a free assessment of the evidence. It found support in the free admissibility of evidence and not in the absence of evidence. Accordingly, if the defence adduced cogent evidence during the trial it had to be informed, if it was to understand and accept the verdict, of the main reasons why the Assize Court had found the accused to be guilty. 53. Of the sixty-three questions read out at the hearing, twenty-eight had concerned the applicant personally. The applicant added that twelve questions had related to the attack of 25 July 1995, nine to the attack of 6 October 1995 and a further nine to the attack of 17 October 1995. The applicant submitted that these twenty-eight questions had been drafted in the abstract by the president following the hearings and had not contained any factual reference or any reasoning regarding the charge of aiding and abetting. The manner in which they were drafted had left him unaware as to why the answer had been “yes” in each case despite the fact that he had denied any personal involvement in the three attacks. 54. The applicant stated in particular that certain factual elements which he disputed prevented him from understanding the reasons for his conviction. In his submission, as it had become clear at the trial that there were shortcomings in the investigation as well as inaccuracies and uncertainty as to his personal involvement, he was unable to understand the reasons for his conviction on the basis of a combined reading of the indictments and the twenty-eight questions. 55. He further submitted that the violation of Article 6 was even more evident since the verdict had not been given by a lay jury, but by a jury made up exclusively of professional judges, who were required to indicate with sufficient clarity the grounds on which their decisions were based. The professional judges making up an assize court bench had to give reasons for their decisions, just as they did in cases before the ordinary criminal courts; that obligation was unquestionably one of the requirements of a fair trial in the modern age. ( b) The Government 56. The Government referred first of all to the Court ’ s case-law concerning assize courts with a lay jury, while observing that the issue of the absence of reasons for a decision given in criminal proceedings in France by a jury of professional judges was being raised for the first time before the Court. The Constitutional Council, in its ruling of 3 September 1986 on the special composition of the assize courts in terrorism cases ( dec. no. 86-213), had found that the exception made in the formation of the assize court was limited in nature, that the difference in treatment was designed to circumvent the risk of pressure or threats to which lay jurors might be subjected, and that an assize court sitting in a special composition of professional judges satisfied the requirements of independence and impartiality. Furthermore, the accused benefited from the same information and the same safeguards as before the ordinary assize courts, including the possibility of appealing since the enactment of Law no. 2000-516 of 15 June 2000. 57. The Government emphasised that Law no. 2011-939 of 10 August 2011, which had made it compulsory, as of 1 January 2012, for assize court judgments to be accompanied by reasons, also applied to judgments of the special assize courts. 58. The Government therefore submitted that the procedural safeguards had enabled the applicant to understand the decision in his case and that the proceedings had complied with the Convention requirements. They noted in particular that the applicant had been the only defendant in the appeal proceedings, and that the indictments had been read out in full, as had the questions put at first instance, the answers to those questions and the judgment convicting him. The oral proceedings had lasted from 16 September to 13 October 2009 and the charges had been the subject of adversarial argument; the applicant had given evidence and had been able to defend his case by debating each item of evidence. The Government observed that no fewer than sixty-three questions had been put and that the affirmative answers had confirmed the three judgments committing the applicant for trial and the criminal conviction handed down at first instance. In particular, it had been open to the applicant to request that the questions be rephrased or that one or more additional questions be asked. 2. The Court ’ s assessment 59. The Court reiterates that, while the Convention does not require jurors to give reasons for their decision and Article 6 does not preclude a defendant from being tried by a lay jury even where reasons are not given for the verdict ( see Taxquet v. Belgium [GC], no. 926/05, § 89, ECHR 2010; Agnelet v. France, no. 61198/08, § 56, 10 January 2013; and Lhermitte v. Belgium [GC], no. 34238/09, § 66, ECHR 2016), in proceedings conducted before professional judges, the accused ’ s understanding of his conviction stems primarily from the reasons given in judicial decisions. In such cases the national courts must indicate with sufficient clarity the grounds on which they base their decisions (see Hadjianastassiou v. Greece, no. 12945/87, 16 December 1992, § 33, Series A no. 252, and Taxquet, cited above, § 91). Reasoned decisions also serve the purpose of demonstrating to the parties that they have been heard, thereby contributing to a more willing acceptance of the decision on their part. In addition, they oblige judges to base their reasoning on objective arguments, and also preserve the rights of the defence. However, even for professional judges the extent of the duty to give reasons varies according to the nature of the decision and must be determined in the light of the circumstances of the case ( see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303 ‑ A, and Taxquet, cited above, § 91). While courts are not obliged to give a detailed answer to every argument raised (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288), it must be clear from the decision that the essential issues of the case have been addressed ( see Boldea v. Romania, no. 19997/02, § 30, 15 February 2007 ). 60. The Court also reiterates that, in any event, for the requirements of a fair trial to be satisfied, the accused, and indeed the public, must be able to understand the verdict that has been given; this is a vital safeguard against arbitrariness. As the Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention (see Taxquet, cited above, § 90, and Lhermitte, cited above, § 67). In the judicial sphere, those principles serve to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society ( see Suominen v. Finland, no. 37801/97, § 37, 1 July 2003; Tatishvili v. Russia, no. 1509/02, § 58, ECHR 2007 ‑ I; and Taxquet, cited above). 61. Seeing that compliance with the requirements of a fair trial must be assessed on the basis of the proceedings as a whole and in the specific context of the legal system concerned, the Court ’ s task in reviewing the absence of a reasoned verdict is to determine whether, in the light of all the circumstances of the case, the proceedings afforded sufficient safeguards against arbitrariness and made it possible for the accused to understand why he was found guilty ( see Taxquet, cited above, § 93). Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced, and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based and sufficiently offsetting the fact that no reasons are given for the jury ’ s answers. Regard must also be had to any avenues of appeal open to the accused (see Papon v. France ( dec. ), no. 54210/00, ECHR 2001-XII; Taxquet, cited above, § 69; and Lhermitte, cited above, § 68). In this regard the Court must bear in mind that it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies ( see Taxquet, cited above, § 93; Lhermitte, cited above, § 69; and Simeonovi v. Bulgaria [GC], no. 21980/04, § 126, ECHR 2017). 62. The Court notes that although the present case concerns an assize court it is distinguishable from comparable cases brought before it in the past in that the court in question did not sit with a lay jury, but in a special composition made up exclusively of professional judges. Accordingly, irrespective of the terminology used, the issue of the absence of reasons does not arise in the context of the involvement of a lay jury. 63. The fact remains that no reasons were given for the Assize Court of Appeal judgment of 13 October 2009, just as was the case with judgments of the assize courts sitting with a lay jury prior to the enactment of Law no. 2011-939 of 10 August 2011 (see Agnelet, cited above; Oulahcene v. France, no. 44446/10, 10 January 2013; Fraumens v. France, no. 30010/10, 10 January 2013; Legillon v. France, no. 53406/10, 10 January 2013; Voica v. France, no. 60995/09, 10 January 2013; and Matis v. France ( dec. ), no. 43699/13, 6 October 2015), which also applied to special assize courts. 64. Consequently, while stressing that in proceedings before professional judges the domestic courts must indicate with sufficient clarity the grounds on which they base their decisions, the Court reiterates that the extent of the duty to give reasons varies according to the nature of the decision and must be determined in the light of the circumstances of the case (see paragraph 59 above). It therefore considers it relevant, in view of the specific features of these proceedings – which are broadly similar to proceedings involving a lay jury – to examine the applicant ’ s complaint in the light of the principles established in its judgment in Taxquet (cited above; see also Agnelet, Oulahcene, Fraumens, Legillon and Voica, all cited above, and Lhermitte, cited above ). 65. The Court observes at the outset that all defendants in French criminal proceedings, like the applicant, are provided with certain information and afforded certain safeguards: the indictment, or the judgment of the investigation division in the case of an appeal, is read out in full by the clerk at the trial in the assize court; the charges are read out and are then the subject of adversarial argument, each item of evidence being examined and the accused being assisted by counsel; the judges and jury withdraw to deliberate immediately after the oral proceedings have ended and the questions have been read out, without having access to the case file; accordingly, their decision can only be based on the evidence examined by the parties during the trial. Furthermore, the decisions of the assize courts are subject to review by an enlarged assize court of appeal, made up of nine judges compared with seven at first instance in the case of a special assize court (see, in particular, Agnelet, cited above, § 63). 66. With regard to the combined impact of the indictment and the questions to the Assize Court in the present case, the Court notes firstly that the applicant was not the only accused and that the case was a complex one. 67. Furthermore, the three judgments committing the applicant for trial had a limited impact since they were delivered before the oral proceedings, which formed the crucial part of the trial. The Court nevertheless notes that each of these judgments concerned a different attack and that the reasoning was particularly thorough with regard to the charges, setting out the events in a very detailed manner. Moreover, the accused had already had an opportunity during the first-instance proceedings to assess the charges against him in depth and to put forward a defence. Besides the fact that the judgments committing the applicant for trial continued to form the basis for the charges against him in the Assize Court of Appeal proceedings, the oral proceedings at first instance had afforded him a more detailed insight into the charges against him and the grounds on which he was liable to be convicted on appeal. 68. A total of sixty-three questions were asked concerning the applicant, of which twenty-six related to the events surrounding the attack of 25 July 1995, eighteen to the events surrounding the attack of 6 October 1995 and nineteen to the attack of 17 October 1995. The answer was “yes ”, by a majority, in the case of sixty-one of them ( some questions, followed by a list of victims and requiring an individual reply in each case, were also found partly “devoid of purpose”), and two questions were found to be “devoid of purpose” (see paragraph 40 above). The Court notes in particular that, besides details of the places and dates concerned in each instance and an indication of the victims according to the damage suffered (death, mutilation or permanent disability, temporary total unfitness for work of over eight days and of a maximum of eight days, destruction of or damage to property), the questions related in particular to whether or not the applicant ’ s actions had been premeditated (questions nos. 2, 8, 28 and 46), and to incitement of others to commit certain acts (questions nos. 5, 11, 20, 25, 31, 36, 43, 49, 57 and 62), the assistance lent by the applicant to the perpetrators of the attacks (questions nos. 10, 19, 24, 30, 35, 42, 48, 56 and 61) and whether the applicant had issued instructions to others to commit certain crimes (questions nos. 6, 12, 21, 26, 32, 37, 44, 50, 58 and 63). The Court considers that, owing to their number and precision, these questions formed a framework on which to base the verdict ( see, mutatis mutandis, Papon v. France (no. 2) ( dec. ), no. 54210/00, ECHR 2001 ‑ XII). It further notes that, while the applicant objected to the manner in which they were drafted (see paragraph 53 above), he did not seek either to amend them or to ask other questions (see, mutatis mutandis, Lhermitte, cited above, § 79). 69. Accordingly, in the light of the combined examination of the three judgments committing the applicant for trial, which were particularly thoroughly reasoned, the oral proceedings to which he had access both at first instance and on appeal, and the numerous and precise questions put to the Assize Court, the applicant could not claim to have been unaware of the reasons for his conviction. 70. In sum, the Court considers that in the instant case the applicant was afforded sufficient safeguards enabling him to understand why he was found guilty (compare, mutatis mutandis, Legillon, cited above, § 67; Voica, cited above, § 53; and Bodein v. France, no. 40014/10, § 42, 13 November 2014). The Court nevertheless welcomes the fact that the reforms introduced since the material time, with the enactment of Law no. 2011-939 of 10 August 2011 requiring a “statement of reasons form” to be drawn up (see Legillon, § 68; Voica, § 54; and Bodein, § 43, all cited above), also applies to special assize courts (see paragraph 63 above). 71. It follows that there has been no violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No.. 7 72. The applicant contended that he had been prosecuted and convicted twice for identical facts, in view of his final conviction by the Paris Court of Appeal on 18 December 2006. He relied on Article 4 of Protocol No. 7, which provides: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” 73. The Government contested that argument. ... B. Merits 1. The parties ’ submissions ( a) The applicant 75. The applicant maintained that it was clear from the Court ’ s case-law that the facts to be assessed should be understood to refer to the behaviour or conduct of which he had been accused before the criminal courts and subsequently before the assize courts. In his view, the criminal acts referred to in the Investigation Division ’ s judgments were encompassed in the facts on the basis of which he was finally convicted by the Paris Court of Appeal on 18 December 2006. 76. In his application and his observations in reply to those of the Government, the applicant raised arguments regarding the funding operations and telephone calls. In particular, with regard first of all to the attack of 25 July 1995, he stressed that the transfer of a sum of GBP 5,000 referred to in the judgment of 3 August 2001 was also taken into consideration in the Paris Court of Appeal judgment of 18 December 2006. In the applicant ’ s view, the transfer of the sum of GBP 6,945 referred to in the Investigation Division ’ s judgment of 3 August 2001 should be regarded as being encompassed in the facts of the judgment of 18 December 2006, which had taken into account all the material acts committed by the applicant in connection with his role in funding the preparations for the attacks. 77. As to the telephone calls of 24 July 1995 referred to in the judgment of 3 August 2001 committing the applicant for trial, but not mentioned in the judgment of 18 December 2006, the applicant noted that in the latter judgment the Paris Court of Appeal had convicted him specifically on account of his role as coordinator of the GIA ’ s external activities, finding that the existence of an information hub in London which he had allegedly managed was demonstrated by the correlation between the telephone calls and the attacks. The calls of 24 July were thus inextricably linked to the calls made by the applicant in his role as coordinator of the various attacks. 78. The same was true of the calls of 26 September and 22 October 1995 referred to by the Government. Although they were not mentioned in the judgment of 18 December 2006, the applicant maintained that they were inextricably linked to the other calls. ( b) The Government 79. In the Government ’ s submission, the applicant had not been convicted on the basis of the same facts since he had been charged with separate offences, the elements of which were different. The facts in respect of which the applicant had been sentenced to ten years ’ imprisonment by the Paris Court of Appeal on 18 December 2006 were not identical, or substantially the same, as those for which the special Assize Court of Appeal sentenced him to life imprisonment on 13 October 2009. In particular, the Paris Court of Appeal had examined the applicant ’ s involvement in the conspiracy, whereas the special Assize Court had tried him on charges of aiding and abetting the attacks of 25 July, 6 October and 17 October 1995. In the Government ’ s view, the facts were therefore different in the two sets of proceedings. In the criminal court proceedings, the applicant had been charged with membership of a terrorist group, whereas the special Assize Court had tried him for specific acts consisting of aiding and abetting the carrying-out of terrorist attacks. Moreover, each of the sentences passed was deemed to cover the concurrent offences, subject to the statutory limit applicable to each one. 80. In the alternative, if the Court were to consider that the facts should be understood to mean the behaviour or conduct with which the applicant had been charged by the criminal courts and subsequently by the assize courts, the Government submitted that these were likewise not identical or substantially the same. For instance, the judgment of 18 December 2006 had not mentioned certain facts that were taken into consideration subsequently. 2. The Court ’ s assessment ( a) General principles 81. The Court reiterates that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 82, ECHR 2009, and A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 108, ECHR 2016). 82. The guarantee enshrined in Article 4 of Protocol No. 7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. At this juncture the available material will necessarily comprise the decision by which the first “penal procedure” was concluded and the list of charges levelled against the applicant in the new proceedings. Normally, these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused. Such statements of fact are an appropriate starting-point for the Court ’ s determination of the issue whether the facts in both proceedings were identical or substantially the same. It is irrelevant which parts of the new charges are eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol No. 7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal (see Sergey Zolotukhin, cited above, § 83). 83. The Court ’ s inquiry should therefore focus on the facts set out in these statements, which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (see Sergey Zolotukhin, cited above, § 84). 84. In so doing, the Court must determine whether the new proceedings arose from facts which were substantially the same as those which had been the subject of the final conviction (see Sergey Zolotukhin, cited above, § 82; see also Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 224, 4 March 2014, and Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, § 68, 30 April 2015). In its judgment in A and B v. Norway, which concerned the conduct of mixed proceedings (that is, criminal and administrative), the Court reaffirmed this approach, noting that it represented the most significant contribution of the Sergey Zolotukhin judgment, cited above (see A and B v. Norway, cited above, § 108). ( b) Application of the above-mentioned principles to the present case 85. The Court notes at the outset that the judgment of the Paris Court of Appeal of 18 December 2006, convicting the applicant following criminal proceedings, became final on 14 March 2007 when his appeal on points of law was dismissed (see paragraph 27 above). From that point onwards, therefore, the applicant was to be considered as having already been finally convicted of an offence for the purposes of Article 4 of Protocol No. 7. 86. The proceedings coming within the jurisdiction of the assize courts, which reflected the procedural choice made by the judicial authorities and gave rise to the judgments of February, August and November 2001 committing the applicant for trial, and which resulted in the applicant ’ s conviction by the special Assize Court on 26 October 2007 and on 13 October 2009, were not discontinued. 87. The Court notes that, contrary to what the Government appeared to assert (see paragraph 79 above), it is clear from the principles set forth in Sergey Zolotukhin, cited above, that the issue to be determined is not whether the elements of the offences with which the applicant was charged in the proceedings before the criminal courts and those before the assize courts were or were not identical, but whether the facts at issue in the two sets of proceedings referred to the same conduct. Where the same conduct on the part of the same defendant and within the same time frame is at issue, the Court is required to verify whether the facts of the offence of which the applicant was initially convicted, and those of the offence for which proceedings continued, were identical or substantially the same (see Sergey Zolotukhin, cited above, § 94). 88. As regards the proceedings in the criminal courts, the Court notes that the Criminal Court took care to present the facts in detail in its judgment of 29 March 2006. After setting the case in context and assessing the evidence against the applicant (see paragraphs 19-20 above), it found that his involvement in a criminal conspiracy in connection with a terrorist enterprise was established, as the judicial investigation had shown that several terrorist groups were based in the Lyons region, in Paris and in Lille and that the applicant ’ s contacts with the various members of these GIA support networks, who had the shared goal of carrying out attacks, were sufficient to establish his conscious and deliberate participation in a conspiracy to carry out terrorist acts on French soil. In its judgment the Criminal Court set out the facts demonstrating the applicant ’ s links to eight members of these groups and found that by providing funding and issuing propaganda on behalf of the GIA, the applicant had helped to strengthen the networks spread over several European countries (see paragraphs 21-22 above). 89. The Court further notes that in its judgment of 18 December 2006 the Paris Court of Appeal gave reasons explaining its approach. It began by giving details of the telephone calls demonstrating the existence of an information hub in London which was allegedly managed by the applicant. Hence, it referred to the calls made the day after the killing of the imam S. in Paris; two days before the attack on the Saint-Michel suburban rail station; on the day of that attack and the day after the attempted attack on the Paris-Lyon high-speed railway line at Cailloux-sur-Fontaines; on 12 September 1995, a few days after the attack of 3 September on Boulevard Richard Lenoir in Paris, the attempted attack of 4 September on Place Charles Vallin in Paris and the attack of 7 September in rue Jean ‑ Claude Vivand in Villeurbanne; the day after the shooting at the Col de Maleval and the arrest of three people; five days before the attack of 6 October and two days after it; on 16 October 1995, in other words just before the attack of 17 October; and, finally, on 1 November 1995, immediately after a telephone conversation between B.B. and S.A.B. concerning preparations for an attack on the Wazemmes market in Lille, with B.B. stating that the purpose of the call was to report to the applicant on the “final preparations” for the Lille attack ( see paragraph 23 above ). The Court notes that the Paris Court of Appeal went on to list the items of factual evidence pointing to the applicant ’ s involvement as the supervisor of a structure set up to fund the GIA ’ s activities in France. It referred to the funds sent by the applicant on 16 October 1995 under a false name and received by B.B.; the payment by the applicant of GBP 5,000 and FRF 50,000; and statements from several individuals concerning services offered in return for payment, fundraising and money transfers (see paragraph 24 above). The Court of Appeal also referred to a series of facts demonstrating, firstly, that the applicant had been the main contact person in organising and carrying out the GIA ’ s activities in Europe, as was clear in particular from a telephone conversation of 2 December 1995, from the statements of a witness who was a GIA member, and from the detailed content of several documents seized in London (press statements, authorisations to conduct the jihad, documents on the management of funds, articles and handwritten notes on the activities of Islamist groups in Europe and anti-terrorist activities, notes on military weapons and the handling of explosives, and so on); secondly, that he had been the GIA ’ s main propaganda agent outside Algeria (in view of his role on the magazine Al Ansar as established by documents seized at the applicant ’ s London address, namely a note on how to make the magazine more dynamic, a letter explaining the means of distributing it, a piece of computer equipment which the applicant would have been unable to afford, letters from readers and GIA sympathisers, a large number of magazines detailing the GIA ’ s ideas and violent actions, a substantial amount of correspondence relating to Algerian and Islamic issues, some testimonies, and a list of post-office boxes in numerous countries, used by the magazine ’ s subscribers); thirdly, that he had been at the centre of the London cell which also served as a rallying point for young recruits passing through; and fourthly, that he had been a leader with a strategic role in the GIA ’ s external organisation, as demonstrated by his links to members and correspondents of other Islamist terrorist groups worldwide (see paragraph 25 above). 90. Lastly, the Court notes that the Court of Appeal cited as reasons for its judgment the decisive role knowingly played by the applicant in the external structure set up in Europe by the GIA with the aim of overthrowing the Algerian regime. This involved creating networks in Belgium and France in particular in order to provide support to the Algerian guerrillas by supplying weapons, munitions and various items of equipment, supplying jihadists and providing safe havens to fighters who were fleeing the Algerian maquis or had arrived to carry out attacks (see paragraph 26 above). 91. As regards the assize court proceedings, the Court notes that the Investigation Division of the Paris Court of Appeal, in three judgments of 13 February, 3 August and 27 November 2001, committed the applicant for trial before the Paris Assize Court on charges of aiding and abetting the crimes committed during the attacks of 25 July and 6 and 17 October 1995 (see paragraphs 28-29 above). It observes that these judgments, which in this instance concerned specific criminal conduct aimed at the achievement of precise objectives represented by each of the attacks carried out in Paris on 25 July and 6 and 17 October 1995, set out the factual evidence forming the basis for the applicant ’ s prosecution and his committal for trial before the Assize Court. In particular, the applicant was charged, in relation to these three attacks, with transmitting instructions from the GIA ordering the attacks to be carried out with explosives and relaying to the GIA leadership operational information provided by the perpetrators of the attacks, and with issuing instructions for making the explosive devices to his accomplices in Paris, while procuring for them the funds needed to manufacture the explosives and make all the logistical arrangements for preparing and carrying out these particular attacks (see paragraph 30 above). 92. The Court observes that the Investigation Division ’ s judgments listed the following specific facts in particular. The three mobile phones used by the applicant had received calls from B.B., one of the main organisers in Paris and one of the perpetrators of the attacks, on 16 and 22 October and 1 November 1995; a receipt for an exchange transaction performed on 16 October 1995 for an amount of FRF 36,800 had been discovered at B.B. ’ s home, together with a notice of transfer for FRF 38,000; the applicant ’ s fingerprints had been found on the transfer slip kept by the Western Union office in the Londis shop; the words “LYESO – FF 36,600” had been found in the credit column of B.B. ’ s accounts and the words “West Union” and “West-Union Bank” had also been entered by B.B. in a document logging the details of the 17 October attack; the applicant had possessed the details of the Western Union branch in rue du Cloître in the Notre-Dame district of Paris; an exchange receipt dated 21 July 1995, for an amount of GBP 5,000 exchanged in London at a rate of 7.5%, had been found at the applicant ’ s home, with the number of a public payphone in Corbeil-Essonnes used by one of the perpetrators of the attacks written on the back, and an entry had been made in the credit column of B.B. ’ s accounts; a sum of GBP 6,945 had been sent on 20 July 1995; and between 20 and 25 July 1995 the sum of FRF 300 had been entered as expenditure for the purchase of a “GB ticket”, demonstrating that the funds, after being exchanged in England, had been transported to Paris in the days leading up to the attack at the Saint-Michel suburban rail station. The judges also noted, as evidence against the applicant, the content of a hard disk found in a London flat to which the applicant had had keys, containing two financial reports, one relating to the activities of the GIA in Belgium and the other to a set of accounts for the period from September 1994 to 1 November 1995, the date of B.B. ’ s arrest (see paragraph 31 above). 93. The Court also notes that the Investigation Division emphasised certain factual elements specific to the different attacks. For instance, in its judgment of 13 February 2001 concerning the attack of 17 October 1995 it stressed the fact that the applicant ’ s three telephone numbers had been called repeatedly from payphones used by B.B., around the time of the different attacks and in particular on the day before the attack of 17 October 1995, in order to report to the applicant on the preparations under way. The Investigation Division also highlighted the fact that the transfer of FRF 36,800 made from London the day before the attack of 17 October 1995 was directly linked to that attack (see paragraph 32 above). In its judgment of 3 August 2001 concerning the attack of 25 July 1995, the Investigation Division stressed that a call had been made to the applicant ’ s English mobile phone two days before the attack from a public payphone in Paris close to B.B. ’ s home which had also been used to contact another GIA member in France. The day before the attack and then on the day itself, the applicant had received calls from France on his various numbers, including from a payphone close to the previous one, concerning his role as an intermediary between the perpetrators of the attacks and the person masterminding them in Algeria. Furthermore, the applicant had on 2 and 20 July 1995 sent sums of GBP 5,000 and GBP 6,945 respectively which were directly linked to the attack carried out on 25 July 1995 (see paragraph 33 above). Finally, in its judgment of 27 November 2001 concerning the attack of 6 October 1995, the Investigation Division noted that the instructions issued by the GIA concerning the campaign of attacks, which had been accompanied by advice on the manufacture of explosives, had been transmitted via the applicant, who had been required to account for the use of the sums he had provided and had also been kept informed of the progress of the attacks, and in particular of the attack of 6 October 1995 by means of a telephone call of 8 October 1995 (see paragraph 34 above). The Assize Court went on to find that he had knowingly assisted in the manufacture or possession of explosive devices and issued instructions to that effect, in the context of the attacks of 25 July and 6 and 17 October 1995, and had knowingly incited others to manufacture or possess such devices in the context of the attacks of 25 July and 17 October 1995 (see paragraph 41 above). 94. Having thus compared the judgment of 18 December 2006 in which the Paris Court of Appeal convicted the applicant and the three judgments of the Investigation Division of 13 February, 3 August and 27 November 2001 committing him for trial before the special Assize Court, the Court notes that these decisions were based on numerous and detailed facts that were distinct from each other. In particular, it considers that although the transfer of GBP 5,000 referred to by the applicant (see paragraph 76 above) was mentioned both in the Court of Appeal judgment and in the judgments of the Investigation Division, that circumstance does not amount to a decisive similarity. As to the transfer of a sum of GBP 6,945 and the telephone calls on which the applicant relied, the Court observes – as did the applicant himself – that none of these features in both the Court of Appeal judgment convicting him and any of the Investigation Division ’ s judgments committing him for trial. On this point, it is not persuaded by the applicant ’ s claims that the transfer of funds should be regarded as being encompassed in the facts of the judgment of 18 December 2006 and that the telephone calls were inextricably linked to other calls dealt with in that judgment (see paragraphs 76 to 78 above). In any event, irrespective of these aspects referred to by the applicant in his observations, it appears that the three judgments delivered in 2001 committing the applicant for trial not only disregarded numerous factual elements raised in the criminal court proceedings, but above all concerned conduct and were based on facts that had not been referred to in the first set of proceedings. 95. The Court therefore concludes that the applicant was not prosecuted or convicted in the assize court proceedings on the basis of facts that were substantially the same as those that were the subject of his final conviction by the criminal courts. 96. Lastly, the Court reiterates that it is legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts, which it cannot condone in any circumstances (see, in particular, A. and Others v. the United Kingdom [GC], no. 3455/05, § 126, ECHR 2009; Ismoilov and Others v. Russia, no. 2947/06, § 126, 24 April 2008; and Daoudi v. France, no. 19576/08, § 65, 3 December 2009). Moreover, the applicant was convicted by the Assize Court not just on the basis of facts that differed from those for which he had been convicted in the first set of proceedings, but also for the crimes of aiding and abetting murder and attempted murder. The Court emphasises that these offences constitute serious violations of fundamental rights under Article 2 of the Convention, whose perpetrators States are required to prosecute and punish (see, mutatis mutandis, Marguš v. Croatia [GC], no. 4455/10, §§ 127-28, ECHR 2014 (extracts) ), provided that the procedural guarantees of the persons concerned are complied with (compare, in particular and mutatis mutandis, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 252, ECHR 2016), as they were in the applicant ’ s case. 97. In the light of the foregoing, the Court considers that there has been no violation of Article 4 of Protocol No. 7 to the Convention. | The Court held that there had been no violation of Article 4 of Protocol No. 7, finding that the applicant had not been prosecuted or convicted in the framework of the criminal proceedings for facts which had been substantially the same as those of which he had been finally convicted under the prior summary proceedings. The Court also reiterated that it was legitimate for the Contracting States to take a firm stance against persons involved in terrorist acts, which it could in no way condone, and that the crimes of complicity in murder and attempted murder of which the applicant had been convicted amounted to serious violations of the fundamental rights under Article 2 (right to life) of the Convention, in respect of which States are required to pursue and punish the perpetrators, subject to compliance with the procedural guarantees of the persons concerned, as was the situation for the applicant in the present case. |
959 | Risk of being sentenced to death | II. RELEVANT DOMESTIC LAW 28. The basic provisions concerning the right of aliens to enter and remain in Sweden are to be found in the Aliens Act ( Utlänningslagen, 1989:529). An alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (chapter 3, section 4 of the Act). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who is unable or, owing to such fear, unwilling to avail him- or herself of protection in that country. This applies irrespective of whether or not persecution is at the hands of the authorities of the country, if the authorities cannot be relied on to offer protection against persecution by private individuals (chapter 3, section 2). By “an alien otherwise in need of protection” (chapter 3, section 3) is meant, inter alia, a person who has left the country of his or her nationality because he or she has a well-founded fear of being sentenced to death or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. 29. In addition, when it comes to enforcing a decision to refuse entry to or to deport an alien, regard must be had to the risk of torture and other inhuman or degrading treatment or punishment. According to a special provision on bars to enforcement (chapter 8, section 1), an alien must not be sent to a country where there are reasonable grounds ( skälig anledning ) for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION 33. The applicants complained that, if deported from Sweden to Syria, the first applicant would face a real risk of being arrested and executed, as the death sentence against him in Syria had gained legal force. They relied on Articles 2 and 3 of the Convention, the relevant parts of which provide: Article 2 “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties' submissions 1. The applicants 34. The applicants submitted that it was established that the first applicant's fear of being executed upon return to Syria was real since the judgment was authentic and enforceable. They stressed that the letter provided by the Swedish embassy in Damascus and the research carried out by the local lawyer it had engaged were uncertain and imprecise, using words such as “probable” and “likely” while at the same time acknowledging that the Syrian judicial system was arbitrary and corrupt. Furthermore, it had also been acknowledged that there was no reliable information on the frequency with which the death penalty was implemented in that country since executions were carried out without the public being informed. The first applicant further expressed strong doubts about his ability to survive arrest and detention upon his arrival in Syria. The fact that he had applied for asylum in a third country and was of Kurdish origin were both circumstances which would expose him to additional risks upon a forcible repatriation. Moreover, the first applicant contended that it would be very difficult for him to find witnesses and evidence in his favour if his case were reopened in Syria since it was now more than six years since the alleged murder had taken place. 35. The applicants also pointed to the fact that the Aliens Appeals Board had not been unanimous in its decision but that one of the three members had found that the first applicant's fear of being executed if returned to Syria was well-founded and that the applicants should therefore have been granted protection in Sweden. 36. In conclusion, the applicants maintained that the first applicant faced a substantial risk of being executed if he were sent back to Syria, in violation of Articles 2 and 3 of the Convention. 2. The Government 37. The Government observed that Article 2 of the Convention did not prohibit capital punishment but that the protection against the death penalty was guaranteed in all circumstances by Article 1 of Protocol No. 13 to the Convention, a Protocol by which Sweden was bound. Thus, the Government had no objection to the examination of the present case under both Article 3 of the Convention and Article 1 of Protocol No. 13, and they would proceed on that assumption. 38. They recognised that the human rights situation in Syria was still problematic, noting, inter alia, that the death penalty was prescribed for, among other crimes, murder. However, since details on the enforcement of capital punishment were never made public, it was difficult to determine whether executions took place. The Government further observed that the Syrian Constitution provided for an independent judiciary but that political connections and bribery sometimes influenced verdicts in the ordinary courts. Defendants in criminal trials had the right to apply for bail and their release from detention on their own recognisance. However, many criminal suspects were held in pre-trial detention for months. Defendants in criminal courts were, moreover, presumed innocent, had the right to legal representation of their own choosing and were allowed to present evidence and to cross-examine their accusers. Furthermore, verdicts could be appealed against to a provincial appeal court and ultimately to the Court of Cassation. 39. On the basis of the above, the Government considered that the circumstances in Syria could not in themselves suffice to establish that the forcible repatriation of the first applicant to that country would entail a violation of Article 3 of the Convention or of Article 1 of Protocol No. 13. In the Government's view, in order for there to be a violation of either Article, it had to be established that the first applicant was personally at risk of being subjected to treatment contrary to those provisions. 40. In that regard, and taking into consideration the information obtained by the Swedish embassy in Syria and the local lawyer it had engaged, the Government referred to the conclusion of the Aliens Appeals Board that the first applicant could not be considered to have a well-founded fear of being sentenced to death or executed upon his return to Syria. Thus, neither the first applicant nor his family was in need of protection. The Government stressed that that conclusion had been reached by the Aliens Appeals Board applying the relevant provisions of the Aliens Act, which were in conformity with the corresponding Convention guarantees. B. The Court's assessment 1. The relevant principles 41. The Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and deportation of aliens. However, the deportation of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport the person in question to that country (see, among other authorities, H.L.R. v. France, judgment of 29 April 1997, Reports of Judgments and Decisions 1997-III, p. 757, §§ 33-34). 42. Moreover, the Court has not in earlier cases excluded the possibility that a Contracting State's responsibility might be engaged under Article 2 of the Convention or Article 1 of Protocol No. 6 where an alien is deported to a country where he or she is seriously at risk of being executed, as a result of the imposition of the death penalty or otherwise (see among others, S.R. v. Sweden (dec.), no. 62806/00, 23 April 2002; Ismaili v. Germany (dec.), no. 58128/00, 15 March 2001; and Bahaddar v. the Netherlands, judgment of 19 February 1998, Reports 1998-I, opinion of the Commission, pp. 270-71, §§ 75-78). In Öcalan v. Turkey ([GC], no. 46221/99, ECHR 2005-IV), the Grand Chamber of the Court noted that the territories encompassed by the member States of the Council of Europe had become a zone free of capital punishment and that it could be said that capital punishment in peacetime, having regard, inter alia, to the fact that all member States had signed Protocol No. 6 and only two (Russia and Monaco) had yet to ratify it, had come to be regarded as an unacceptable form of punishment which was no longer permissible under Article 2 of the Convention (ibid., § 163; for a survey on the Council of Europe's stance regarding capital punishment, see Öcalan, §§ 58 and 59). However, the Grand Chamber considered that: “For the time being, the fact that there are still a large number of States who have yet to sign or ratify Protocol No. 13 may prevent the Court from finding that it is the established practice of the Contracting States to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation may be made from that provision, even in times of war.” (paragraph 165) The Grand Chamber abstained from reaching any firm conclusion as to whether Article 2 of the Convention could be considered to have been amended so as to prohibit the death penalty in all circumstances (ibid., § 165). At the same time, it considered that it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial as an arbitrary deprivation of life was prohibited (ibid., § 166): “... It also follows from the requirement in Article 2 § 1 that the deprivation of life be pursuant to the 'execution of a sentence of a court', ... and that the most rigorous standards of fairness be observed in the criminal proceedings both at first instance and on appeal.” Moreover, to impose a death sentence on a person after an unfair trial would generate, in circumstances where there exists a real possibility that the sentence will be enforced, a significant degree of human anguish and fear, bringing the treatment within the scope of Article 3 of the Convention (ibid., §§ 168-69). In this connection, it should also be noted that the Court has acknowledged that an issue might exceptionally be raised under Article 6 of the Convention by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 88, ECHR 2005-I, and Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 45, § 113). It follows that an issue may arise under Articles 2 and 3 of the Convention if a Contracting State deports an alien who has suffered or risks suffering a flagrant denial of a fair trial in the receiving State, the outcome of which was or is likely to be the death penalty. 2. Application of the above principles to the present case 43. The Court notes from the outset that the applicants have not pursued under the Convention their initial submission before the Swedish immigration authorities that the first applicant had been exposed to torture before leaving Syria and risked being subjected to such treatment were he to be sent back there. The Court will not examine that matter of its own motion. It will accordingly limit its examination to the applicants' complaint that there is a real risk that the first applicant will be executed if he is deported to Syria, since he has been sentenced to death under an enforceable judgment. 44. In this regard, the Court attaches particular weight to the fact that, according to a judgment of 17 November 2003 by the Regional Court in Aleppo, the first applicant was convicted, in absentia, of complicity in a murder and sentenced to death under Article 535 § 1 of the Syrian Criminal Code. The authenticity of the judgment has been confirmed by the Swedish embassy in Syria. The Court further stresses that, although it might not necessarily be a common occurrence, the death sentence for serious crimes is enforced in Syria. Moreover, it is stated in the judgment that the first applicant may apply for a reopening of his case and for a retrial. However, this would necessarily entail his surrendering to the Syrian authorities upon his return and he would most certainly be detained while awaiting a decision by the court on whether or not to reopen his case. 45. The Court agrees with the applicants that the information in the report from the Swedish embassy in Syria is vague and imprecise as to whether the case would be reopened and as to the likelihood, in the event of a conviction at a retrial, of the first applicant escaping capital punishment. The report contained only assumptions and no definite answers as to what would happen if the applicants were deported to Syria. In this respect, the Court finds it surprising that the first applicant's defence lawyer in Syria does not even seem to have been contacted by the Swedish embassy during their investigation into the case, even though the applicants had furnished the Swedish authorities with his name and address and he could, in all probability, have provided useful information about the case and the proceedings before the Syrian court. More importantly, the Court notes that the Swedish Government have obtained no guarantee from the Syrian authorities that the first applicant's case will be reopened and that the public prosecutor will not request the death penalty at any retrial (see, among others, Mamatkulov and Askarov, cited above, § 76; Soering, cited above, pp. 38-39, §§ 97-98; and Nivette v. France (dec.), no. 44190/98, ECHR 2001 ‑ VII). In these circumstances, the Swedish authorities would be putting the first applicant at serious risk by sending him back to Syria and into the hands of the Syrian authorities, without any assurance that he will receive a new trial and that the death penalty will not be sought or imposed. 46. Thus, the Court considers that the first applicant has a justified and well-founded fear that the death sentence against him will be executed if he is forced to return to his home country. Moreover, since executions are carried out without any public scrutiny or accountability, the circumstances surrounding his execution would inevitably cause the first applicant considerable fear and anguish while he and the other applicants would all face intolerable uncertainty about when, where and how the execution would be carried out. 47. Furthermore, in the instant case, it transpires from the Syrian judgment that no oral evidence was taken at the hearing, that all the evidence examined was submitted by the prosecutor and that neither the accused nor even his defence lawyer was present at the hearing. The Court finds that, because of their summary nature and the total disregard of the rights of the defence, the proceedings must be regarded as a flagrant denial of a fair trial (see, mutatis mutandis, Mamatkulov and Askarov, cited above, § 88). Naturally, this must give rise to a significant degree of added uncertainty and distress for the applicants as to the outcome of any retrial in Syria. In the light of the above, the Court considers that the death sentence imposed on the first applicant following an unfair trial would inevitably cause the applicants additional fear and anguish as to their future if they were forced to return to Syria as there exists a real possibility that the sentence will be enforced in that country (see Öcalan, cited above, § 169). 48. Thus, having regard to all the circumstances of the case, the Court considers that there are substantial grounds for believing that the first applicant would be exposed to a real risk of being executed and subjected to treatment contrary to Articles 2 and 3 if deported to his home country. Accordingly, the Court finds that the deportation of the applicants to Syria, if implemented, would give rise to violations of Articles 2 and 3 of the Convention. 49. Having reached this conclusion, the Court does not find it necessary to consider the matter under Protocol No. 13 to the Convention, as the Government suggested it should. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 51. After declaring the application admissible, the Court requested the applicants to submit their claims for just satisfaction. No such claims have been received. Accordingly no award by the Court is required. | The Court considered that the first applicant had a justified and well-founded fear that the death sentence against him would be executed if he was forced to return to his home country. Since executions were carried out without any public scrutiny or accountability, the circumstances surrounding it would inevitably cause him considerable fear and anguish. As regards the criminal proceedings which had led to the death sentence, the Court found that, because of their summary nature and the total disregard of the rights of the defence, they had been a flagrant denial of a fair trial. The Court concluded that the death sentence imposed on the applicant following an unfair trial would cause him and his family additional fear and anguish as to their future if they were forced to return to Syria. Accordingly, the Court held that the applicants’ deportation to Syria, if implemented, would give rise to a violation of Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) of the Convention. |
717 | Boycott | RELEVANT LEGAL FRAMEWORK Domestic legislation and collective agreements 59. Article 101 of the Norwegian Constitution of 17 May 1814 ( Grunnloven ), as revised in 2014, reads: Article 101 “Everyone has the right to form, join and leave associations, including trade unions and political parties. All people may meet in peaceful assemblies and demonstrations. The Government is not entitled to employ military force against citizens of the State, except in accordance with the law, unless an assembly disturbs the public peace and does not immediately disperse after the Articles of the statute book relating to riots have been read out clearly three times by the civil authority.” 60. Sections 2 and 3 of the Act of 5 December 1947 concerning boycotts ( boikottloven ) read: Section 2 “A boycott is unlawful: (a) when it serves an unlawful purpose or cannot achieve its goal without causing a breach of the law; (b) when it is executed or maintained by unlawful means or in an unnecessarily provocative or offensive manner, or on the basis of false or misleading information; (c) when it will harm important public interests or have an unwarranted effect, or when the interest pursued through the boycott is incommensurate with the harm it will cause; (d) when it is executed without the party against whom it is aimed having been given reasonable notice, or when this party and those who are encouraged to participate in the boycott have not been sufficiently informed in advance of the grounds for the boycott.” Section 3 “If notification has been given of a boycott, a legal action may be brought to decide whether it is lawful. Conciliation proceedings before a Conciliation Board are not necessary in cases concerning the lawfulness of a boycott or ... compensatory damages for losses caused by a boycott. If a boycott has been executed or announced, a court may, at the request of the person against whom the boycott is directed, issue a temporary injunction prohibiting the boycott until it has been decided whether it is lawful.” 61. Sections 1 and 2 of the EEA Act of 27 November 1992 ( Eøs-loven ) read as follows: Section 1 “The provisions in the Main Part of the Agreement on the European Economic Area shall apply as Norwegian law ...” Section 2 “Provisions of law that serve to fulfil Norway’s obligations under the Agreement shall, in the event of conflict, take precedence over other provisions regulating the same matter ...” 62. Sections 2 and 3 of the Human Rights Act of 21 May 1999 ( menneskerettsloven ) read: Section 2 “The following Conventions shall have the force of Norwegian law in so far as they are binding for Norway: 1. The Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 of 11 May 1994 to the Convention, together with the following Protocols: ...” Section 3 “The provisions of the Conventions and Protocols mentioned in section 2 shall take precedence over any other legislative provisions that conflict with them.” 63. Subsequent to the Supreme Court judgment in this case, NHO and LO and NTF concluded a collective agreement for ports and terminals ( Havne- og terminaloverenskomsten ), which replaced the Framework Agreement, in which there is no system with priority for registered dockworkers. EEA and EU law material 64. The respondent State is a member of the European Free Trade Association (EFTA) and party to the 1992 Agreement on the European Economic Area (the EEA Agreement), entered into by three of the EFTA Member States (Iceland, Liechtenstein and Norway (the EEA EFTA States)), the European Union (EU) and the EU Member States. 65. The EEA Agreement extends the EU internal market to the EEA EFTA States by creating rules applicable to them equivalent to those applicable to the EU Member States under the EU Treaties and acts adopted in application of those treaties. Accordingly, the substantive rules in the EEA Agreement, within the areas covered by that agreement, essentially mirror the corresponding rules today found in the Treaty on the Functioning of the European Union (TFEU). They include the right to freedom of establishment provided for in Article 49 of the TFEU, the equivalent of which is found in Article 31 of the EEA Agreement. 66. Article 31 of the EEA Agreement reads as follows: “1. Within the framework of the provisions of this Agreement, there shall be no restrictions on the freedom of establishment of nationals of an EC Member State or an EFTA State in the territory of any other of these States. This shall also apply to the setting up of agencies, branches or subsidiaries by nationals of any EC Member State or EFTA State established in the territory of any of these States. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of Article 34, second paragraph, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of Chapter 4. 2. Annexes VIII to XI contain specific provisions on the right of establishment.” 67. The CJEU has several times given judgments in which the balancing of the fundamental right to collective action with internal market economic freedoms was at issue. In Viking Line, cited above, for example, it concluded that collective action initiated by a trade union or a group of trade unions against a private undertaking in order to induce that undertaking to enter into a collective agreement, the terms of which were liable to deter it from exercising freedom of establishment, fell within the scope of what is currently Article 49 TFEU, and that a collective action such as that at issue in that case constituted a restriction on the freedom of establishment. It found also that that restriction could, in principle, be justified by an overriding reason of public interest, such as the protection of workers. In Laval, cited above, the CJEU also recognised that the right to take collective action for the protection of workers against possible social dumping may constitute a public interest objective. However, it had to be established that the restriction was suitable for ensuring the attainment of the legitimate objective pursued and did not go beyond what was necessary to achieve that objective. 68. In Commission v. Spain (C-576/13, EU:C:2014:2430, 11 December 2014) the CJEU held that, by obliging undertakings of other EU Member States wishing to exercise the activity of cargo-handling in Spanish ports of general interest, first, to register with the Dockers’ Management Public Limited Liability Company ( Sociedad Anónima de Gestion de Estibadores Portuarios ) and, as appropriate, to hold shares in that company and, secondly, to employ as a priority workers provided by that company, including a minimum number on permanent contracts, Spain had failed to fulfil its obligations under Article 49 TFEU. However, the CJEU accepted that the port labour scheme in question was aimed at protecting workers and ensuring the regularity, continuity and quality of cargo handling, both of which were overriding reasons of general interest. The infringement in that case was based on the Spanish Government’s failure to demonstrate that the impugned restrictions were necessary and proportionate, as well as acceptance of the Commission’s argument to the effect that there were means less restrictive of the freedom of establishment to achieve the legitimate aims pursued (ibid., § 55). 69. The compatibility of a national dock work organisation system – which included a requirement to rely on recognised dockers to perform dock work – with several provisions of EU law, including once again those on the freedom of establishment and freedom to provide services – was also recently examined by the CJEU in Katoen Natie Bulk Terminals NV and General Services Antwerp NV v. Belgische Staat and Middlegate Europe NV v. Ministerraad (Joined cases C-407/19 and C ‑ 471/19, EU:C:2021:107, 11 February 2021). The first count of the operative part of the judgment given in that case reads as follows: “Articles 49 and 56 TFEU must be interpreted as not precluding national legislation which obliges persons or undertakings wishing to carry out port activities in a port area – including activities which, strictly speaking, are unrelated to the loading and unloading of ships – to have recourse only to dockers recognised as such in accordance with the conditions and arrangements laid down pursuant to that legislation, provided that those conditions and arrangements, first, are based on objective, non-discriminatory criteria known in advance and allow dockers from other Member States to prove that they satisfy, in their State of origin, requirements equivalent to those applied to national dockers and, second, do not establish a limited quota of workers eligible for such recognition.” In answer to another question referred to it by the Belgian Council of State and Constitutional Court in that case, the CJEU held, at § 78, that: “national provisions [such as those at issue] organising dock work are not, as such, incompatible with the freedoms enshrined in Articles 49 and 56 TFEU, but that the assessment of the compatibility with those freedoms of the regime established pursuant to such provisions requires a holistic approach, taking into consideration all the conditions and arrangements for the implementation of such a regime.” In that case the CJEU pointed out other aspects of the applicable national legislation which would fall foul of Articles 49 and 56 TFEU. International and comparative law material 70. Articles 2 and 3 of ILO Convention No. 137 concerning the Social Repercussions of New Methods of Cargo Handling in Docks, adopted in 1973 and ratified by Norway on 10 June 1974 (the Dock Work Convention) read: Article 2 “1. It shall be national policy to encourage all concerned to provide permanent or regular employment for dockworkers in so far as practicable. 2. In any case, dockworkers shall be assured minimum periods of employment or a minimum income, in a manner and to an extent depending on the economic and social situation of the country and port concerned.” Article 3 “1. Registers shall be established and maintained for all occupational categories of dockworkers, in a manner to be determined by national law or practice. 2. Registered dockworkers shall have priority of engagement for dock work. 3. Registered dockworkers shall be required to be available for work in a manner to be determined by national law or practice.” 71. Articles 3 and 11 of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise (adopted in 1948 and ratified by Norway on 4 July 1949) provide as follows: Article 3 “1. Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.” Article 11 “Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.” 72. In its Digest of decisions and principles (fifth (revised) edition, 2006) the ILO Committee of Freedom of Association (“the CFA”) stated among other things as follows in the sections entitled “Right of organizations freely to organize their activities and to formulate their programmes”; “Other activities of trade union organizations (protest activities, sit-ins, public demonstrations, etc.) and “Collective bargaining”; “Subjects covered by collective bargaining”: “518. The boycott is a very special form of action which, in some cases, may involve a trade union whose members continue their work and are not directly involved in the dispute with the employer against whom the boycott is imposed. In these circumstances, the prohibition of boycotts by law does not necessarily appear to involve an interference with trade union rights. ... 915. As regards the legislative ban on including secondary boycott clauses in collective agreements, the Committee has considered that restrictions on such clauses should not be included in the legislation.” 73. The decision of the European Committee on Social Rights’ of 3 July 2013 in the case of Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden (Complaint No. 85/2012) includes the following: “121. The Committee further considers that legal rules relating to the exercise of economic freedoms established by State Parties either directly through national law or indirectly through EU law should be interpreted in such a way as to not impose disproportionate restrictions upon the exercise of labour rights as set forth by, further to the Charter, national laws, EU law, and other international binding standards. In particular, national and EU rules regulating the enjoyment of such freedoms should be interpreted and applied in a manner that recognises the fundamental importance of the right of trade unions and their members to strive both for the protection and the improvement of the living and working conditions of workers, and also to seek equal treatment of workers regardless of nationality or any other ground. 122. Consequently, the facilitation of free cross-border movement of services and the promotion of the freedom of an employer or undertaking to provide services in the territory of other States – which constitute important and valuable economic freedoms within the framework of EU law – cannot be treated, from the point of view of the system of values, principles and fundamental rights embodied in the Charter, as having a greater a priori value than core labour rights, including the right to make use of collective action to demand further and better protection of the economic and social rights and interests of workers. In addition, any restrictions that are imposed on the enjoyment of this right should not prevent trade unions from engaging in collective action to improve the employment conditions, including wage levels, of workers irrespective of their nationality.” 74. In the case of Govia GTR Railway Ltd v. The Associated Society of Locomotive Engineers and Firemen (case no. 2016/450, [2016] EWCA Civ 1309, 12 December 2016) the Court of Appeal (Civil Division) of the United Kingdom considered an application for an interlocutory injunction brought by a railway against train drivers on the Southern Rail to prevent the train driver’s union from calling strike action, on the basis of Articles 49 and 56 TFEU. The Court of Appeal did not agree that either provision had been breached, and, having reviewed the Viking and Laval cases from the CJEU as well as the EFTA Court’s judgment in the Holship case, stated inter alia the following (paragraph 39): “In our judgment, it is absolutely plain for the reasons we have given that it is the object or purpose of the industrial action and not the damage caused by the action itself which renders it potentially subject to the freedom of movement provisions. A helpful test to apply is to ask whether, if the rules were laid down by government, they would be an unlawful interference with the freedom of establishment. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 75. The applicant unions complained that the decision to declare the notified boycott unlawful had violated their right to freedom of association as provided for in Article 11 of the Convention, which reads as follows: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” Submissions by the parties and the third partyThe applicant unions The applicant unions The applicant unions 76. The applicant unions emphasised the importance of collective agreements for the formation of pay and working conditions in Norway. It had not previously been called into question by the domestic courts that the Framework Agreement and the priority rule in it was a condition that regulated pay and working conditions. The aim of the boycott in the instant case had been to protect rights at the very heart of trade union activity, namely the right to work and the right to stable and organised working conditions for dockworkers. Boycotts and blockades were protected by a number of instruments of international law, notably ILO Convention No. 87, the European Social Charter, and the EU Charter. 77. The applicant unions stated in their observations that the Government had referred to the issue of negative freedom of association in their observations without drawing the conclusion that it was of direct relevance. In the applicant unions’ view, it was irrelevant. They stated that the Norwegian Business Association ( Bedriftsforbundet ), of which Holship was a member, had lodged a complaint about alleged “closed-shop” practices in the dock sector with the European Committee on Social Rights, which in its decision of 17 May 2016 ( Bedriftsforbundet v. Norway, complaint no. 103/2013) had concluded that there had been no violation. The Supreme Court majority had made no mention of the issue, whereas the minority had commented on Holship’s claim and had found it unfounded. First and foremost, the instant case concerned the question of whether there had been an infringement of the right of collective bargaining and the right to enter into a collective agreement. 78. In the applicant unions’ view, the Supreme Court’s majority had erred in so far as it had balanced a right under the Convention against a right under the EEA Agreement in a manner that would only have been appropriate had the issue been a matter of conflicting rights under the Convention. The result had been that the right of collective action had had to be justified in the light of an economic freedom, the freedom of establishment, provided under the EEA. The majority had erroneously examined whether the applicant unions’ exercise of rights under Article 11 had been proportionate, whereas it should have examined whether the restriction placed on their right fulfilled the criteria set out in the second paragraph of Article 11. Finding the boycott unlawful in the circumstances of the present case had been disproportionate. The margin of appreciation to be afforded to the domestic authorities in the present case, a case which had related to a primary and important form of industrial action, had to be narrow. The Government 79. The Government submitted that EEA law provided for the protection of human rights which was similar to the protection provided for by the Convention, and that there was a presumption of compliance with the Convention which was the same as or similar to that set out in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005 ‑ VI), a case concerning the implementation of EU law. That presumption had not been rebutted in the instant case, as there had been no “manifestly deficient” protection of Convention rights. 80. Furthermore, the Government maintained that the Court’s case-law left unresolved the question of whether a boycott such as the one at issue in the instant case was included in the panoply of rights protected under Article 11 of the Convention. In any event, the Government argued that if Article 11 were found to be applicable to the boycott in question, the Supreme Court’s judgment of 16 December 2016, in which the boycott had been declared unlawful, complied with the criteria set out in the second paragraph of that provision. The European Trade Union Confederation (ETUC) 81. The European Trade Union Confederation (ETUC) focused on the relevant legal framework and provided references to international case-law and other legal material from the United Nations, the ILO, the Council of Europe and the EU. From these, it inferred in particular that the right to collective bargaining and the right to collective action, including the right to strike, were recognised as fundamental rights that had to be guaranteed to all workers, including dock workers, and their trade unions. It furthermore submitted that any restriction on those rights had to be exclusively limited to certain conditions and situations, and that the Court, in interpreting the permissible restrictions in relation to Article 11 of the Convention, should take specific account of the competent international and European monitoring bodies mentioned above which had denied that even the need for the “principle of proportionality” was a permissible restriction on the right to strike. AdmissibilityApplicability of Article 11 of the Convention Applicability of Article 11 of the Convention Applicability of Article 11 of the Convention 82. As to whether the announced boycott entailed the exercise of freedom of assembly and association protected by Article 11 § 1 of the Convention, the Court notes that it has not previously rendered judgments relating to an action fully resembling the one at issue in the instant case. The collective action which was the subject of the domestic court judgments was essentially a boycott in the form of a blockade organised by NTF in order to pressure a company, Holship, to enter into a collective agreement containing a priority clause for registered dockworkers employed in the Administration Office. 83. The Court has generally held that Article 11 presents trade union freedom as one form or a special aspect of freedom of association. The provision does not guarantee trade unions, or their members, any particular treatment by the State (see, among other authorities, Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 134, ECHR 2013 (extracts)). The Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible (see, for example, Demir and Baykara v. Turkey [GC], no. 34503/97, § 140, ECHR 2008). 84. The Court notes that in National Union of Rail, Maritime and Transport Workers v. the United Kingdom (no. 31045/10, § 76, 8 April 2014), as regards the applicability of Article 11 to a sympathy strike, it held that it would be inconsistent with the method of interpretation outlined in Demir and Baykara, cited above, § 85, for it to adopt in relation to that provision an interpretation of the scope of freedom of association of trade unions that is much narrower than that which prevails in international law (see in relation to the latter paragraphs 70-73 above). In addition, the Court notes that at issue in the case of Gustafsson v. Sweden (25 April 1996, Reports of Judgments and Decisions 1996 ‑ II) was collective action in the form of a blockade. In that case, which had been brought by the applicant business as a result of the extent of the inconvenience or damage caused by the union action to its business, the Court recognised that the measures complained of must have entailed considerable pressure on the applicant to meet the union’s demand that he be bound by a collective agreement. The Court accepted in that case that, to a degree, the enjoyment of the applicant business’ freedom of association was thereby affected and Article 11 was thus deemed applicable. The Court considers that given that a blockade can lead to Article 11 being deemed applicable in relation to the negative freedom of association of an applicant business or employer, it follows that the exercise of a blockade by an applicant trade union can also give rise to the applicability of Article 11 of the Convention. The Court observes that a boycott may be the only means available to a trade union to put pressure on an employer in defense of workers’ rights 85. The Court observes moreover that in one of the CJEU judgments to which the domestic court referred, the CJEU had recognised, for the first time, relying in part on the European Social Charter, that the right to collective action constituted a fundamental right under EU law. It is noteworthy that the form of collective action at issue in that case – Laval un Partneri – was also a blockade. 86. With regard to the proposed action in the instant case, the Court observes that its purpose was to pressure Holship to enter into a collective agreement with NTF under which registered dockworkers employed by the Administration Office would enjoy the right to priority of engagement for unloading and loading operations at the port. Leaving aside for the time being the question of whether – as the majority of the Supreme Court considered – the action pursued business aims beyond the protection of the rights and interests of workers (see paragraph 38 above) – a question which will be of relevance on the merits – it is undisputed that the impugned boycott also aimed to ensure stable and safe working conditions for dockworkers. This was recognised by both majority and minority members of the Supreme Court and by the lower courts. Furthermore, the Court observes that the priority right which was one of the rights the proposed boycott sought to defend, was based on a long-standing tradition domestically, and was provided for in ILO Convention No. 137 (see paragraph 70 above). 87. In the light of the above considerations, the Court finds that the impugned boycott which the applicant unions notified in advance in accordance with domestic law constituted a trade union action which they sought to take in order to protect, at least inter alia, the occupational interests of union members in a manner capable of falling within the scope of Article 11 § 1 of the Convention. It follows that this provision is applicable. Conclusion on admissibility 88. The Court, having found that Article 11 of the Convention is applicable, further notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35. It must therefore be declared admissible. MeritsInterference with the applicants’ rights under Article 11 of the Convention Interference with the applicants’ rights under Article 11 of the Convention Interference with the applicants’ rights under Article 11 of the Convention 89. It is not contested that the Supreme Court’s declaratory judgment finding the intended boycott unlawful entailed a “restriction” on the exercise of the trade unions’ rights under the second paragraph of Article 11 of the Convention. Lawfulness and legitimacy of the restriction 90. Turning to the requirement that the restriction be prescribed by law, the Court finds that the Supreme Court’s judgment had an adequate legal basis – the 1947 Boycott Act (see paragraph 60 above). 91. The Court also finds that the decision to declare the boycott unlawful was made in order to protect the “rights and freedoms” of others, in particular the company’s right to freedom of establishment as guaranteed by the EEA Agreement and incorporated in Norwegian law by the EEA Act (see paragraphs 61 and 66 above). Whether the restriction was necessary in a democratic society (a) General principles 92. The Court reiterates that the essential object of Article 11 of the Convention is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected by that provision, but that there may in addition be positive obligations on the State to secure the effective enjoyment of such rights (see, for example, Sindicatul “Păstorul cel Bun”, cited above, § 131, and Demir and Baykara, cited above, § 110). 93. As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that paragraph 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. The right to collective bargaining has not been interpreted as including a “right” to a collective agreement, nor does the right to strike imply a right to prevail ( National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, judgment of 8 April 2014, § 85). What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests (see, for example, Demir and Baykara, cited above, § 141, and the references therein). 94. Furthermore, the Court has stated that the evolution of case-law on the substance of the right of association enshrined in Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned to secure trade union freedom, subject to its margin of appreciation; and secondly, the Court does not accept restrictions that affect the essential elements of trade union freedom, without which that freedom would become devoid of substance. These two principles are not contradictory but are correlated. This correlation implies that the Contracting State in question, while in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court’s case-law (ibid., § 144). 95. Moreover, through its case-law, the Court has built up a non-exhaustive list of the constituent elements of the right to organise, including the right to form and join a trade union, the prohibition of closed-shop agreements, the right for a trade union to seek to persuade the employer to hear what it had to say on behalf of its members and, having regard to developments in labour relations, the right to bargain collectively with the employer which has, in principle, except in very specific cases, also become one of the essential elements of the first right listed above (see Sindicatul “Păstorul cel Bun”, cited above, § 135; and Demir and Baykara, cited above, § 145). In Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96 and 2 others, § 46, ECHR 2002 ‑ V, the Court stated: “[T]he essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on issues which the union believes are important for its members’ interests”. 96. The Court has stated that the list is not finite. On the contrary, it is subject to evolution depending on particular developments in labour relations. In that connection, it is appropriate to remember that the Convention is a living instrument which has to be interpreted in the light of present-day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies. In other words, limitations to rights have to be construed restrictively, in a manner which gave practical and effective protection to human rights ( Demir and Baykara, cited above, § 146). 97. In view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the high degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how trade union freedom and protection of the occupational interests of union members may be secured (see, among other authorities, Sindicatul “Păstorul cel Bun”, cited above, § 133). 98. In cases relating to industrial actions, the Court has also stressed that its jurisdiction is limited to the Convention. It has no competence to assess a respondent State’s compliance with the relevant standards of the ILO or the European Social Charter, the latter containing a more specific and exacting norm regarding industrial action. In National Union of Rail, Maritime and Transport Workers v. the United Kingdom (no. 31045/10, § 106, ECHR 2014), the Court emphasised, however, that the conclusion which it had reached in that case, in which it found that a ban on taking secondary industrial action against an employer not party to a labour dispute did not violate Article 11, should not be understood as calling into question the analysis effected on the basis of those standards and their purposes by the ILO Committee of Experts and the European Committee on Social Rights. The Court has also emphasised that, under the terms of Article 19 and Article 32 § 1 of the Convention, it is not competent to apply or examine alleged violations of EU rules unless and in so far as they may have infringed rights and freedoms protected by the Convention. More generally, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU law or, in a case such as this, EEA law, the Court’s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see, in relation to Article 8 of the Convention, Jeunesse v. the Netherlands [GC], no. 12738/10, § 110, 3 October 2014). (b) Application of those principles to the present case 99. The Court considers that two issues relating to negative freedom of association and the possible existence and application of the presumption of equivalent protection need to be addressed as preliminary issues. 100. In the present case the Supreme Court declared the announced boycott unlawful as it would have amounted to an unlawful/disproportionate restriction of Holship’s right to freedom of establishment as guaranteed by the EEA Agreement (see, inter alia, paragraph 51 above). 101. It appears that Holship, before the domestic courts, also argued that the boycott would be unlawful because it would contravene the right to “negative freedom of association” enshrined in the first paragraph of Article 11 of the Convention (see, for example, paragraphs 20 and 58 above). This argument was dismissed by the Borgarting High Court on the grounds that it had not been proved that the Administration Office was in fact a “closed shop” for NTF members (see paragraph 20 above), and the Supreme Court’s majority did not discuss it. The minority, which had to take a stand on Holship’s argument relating to negative freedom of association, since it concluded that Holship’s arguments relating to the EEA Agreement could not succeed, only referred to the Borgarting High Court’s reasons on that point (see paragraph 58 above). 102. In the light of the above, the parties disagree on whether questions relating to “negative freedom of association” have relevance to the case now before the Court. 103. The Court notes that had it been established by the domestic courts that the announced boycott would impinge on the negative freedom of association because of the issue of a “closed shop”, the case would have required a balancing of competing rights protected by the first paragraph of Article 11 of the Convention (see, for example, Chassagnou and Others v. France [GC], nos. 25088/94 and 2 others, § 113, ECHR 1999 ‑ III; and, with regard to the term “closed shop”, Young, James and Webster v. the United Kingdom, 13 August 1981, § 13, Series A no. 44). However, that was not established, and the judgment of the Supreme Court indicated only that the announced boycott would interfere with Holship’s right to freedom of establishment under the EEA Agreement, and that that was why it declared it unlawful (see, inter alia, paragraph 51 above). That being the case, and also noting that no submissions have been made to the effect that the domestic legislation in general did not offer adequate protection of the negative freedom of association, the Court finds that its examination in the instant case must focus on the necessity of the restriction under the second paragraph of Article 11. 104. As regards the second preliminary issue, the Court reiterates that it has held that if an organisation to which a Contracting State has transferred jurisdiction is considered to protect fundamental rights in a manner which can be considered at least “equivalent” to that for which the Convention provides, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, §§ 152-153, ECHR 2005 ‑ VI, §§ 155-56 and Konkurrenten.no AS v. Norway (dec.), no. 47341/15, § 42, 5 November 2019). 105. In the present case, the respondent Government argued that while EU law and EEA law differ in certain respects, and even if it were decided that this difference means that EEA law, as such, does not benefit from the so-called Bosphorus presumption of equivalent protection, the present case concerns the application of the main part of the EEA agreement, which corresponds with EU law, and to which the presumption should therefore apply. 106. In the aforementioned Konkurrenten.no decision, cited above, the Court recently stated that the basis for the presumption established by Bosphorus is in principle lacking when it comes to the implementation of EEA law at domestic level within the framework of the EEA Agreement, due to the specificities of the governing treaties compared to those of the European Union. For the purpose of the analysis in that decision, two distinct features were specifically highlighted. Firstly, and in contrast to EU law, there is within the framework of the EEA Agreement itself no direct effect and no supremacy. Secondly, and although the EFTA Court has expressed the view that the provisions of the EEA Agreement “are to be interpreted in the light of fundamental rights” in order to enhance coherency between EEA law and EU law (see, inter alia, the EFTA Court’s judgment in its case E-28/15 Yankuba Jabbi [2016] para. 81), the EEA Agreement does not include the EU Charter of Fundamental Rights, or any reference whatsoever to other legal instruments having the same effect, such as the Convention. 107. As regards, in particular, the latter feature, the Court observes, however, as clearly stated by the EFTA court in the Holship case, that fundamental rights form part of the unwritten principles of EEA law (see paragraph 26 above). The respondent Government provided several examples from the EFTA court in this regard. Since this reflects the position which previously pertained under EU law, prior to successive EU Treaty amendments, according to which fundamental rights were first recognised as general principles of EU law, the Court considers that the fact that the EEA agreement does not include the EU Charter is not determinative of the question whether the Bosphorus presumption could apply when it comes to the implementation of EEA law, or certain parts thereof. 108. However, given one of the other features of EEA law identified by the Court in the Konkurrenten. no decision – the absence of supremacy and direct effect, added to which is the absence of the binding legal effect of advisory opinions from the EFTA Court – and given that the existence of procedural mechanisms for ensuring the protection of substantive fundamental rights guarantees is one of the two conditions for the application of the Bosphorus presumption, the Court leaves it to another case, where questions in relation to the procedural mechanisms under EEA law may arise, to review this issue. It therefore proceeds on the basis that for the purposes of this case the Bosphorus presumption does not apply to EEA law. The Court is therefore required to determine whether the restriction was necessary for the purposes of Article 11 of the Convention. 109. Having addressed those two preliminary issues, the Court turns to the heart of the present case, namely the assessment of the necessity of the restriction of the applicant trade union’s Article 11 rights as a result of the Supreme Court decision to declare the announced boycott unlawful. In this context the Court observes that the particularity of the fundamental right to engage in collective action is that it too may be exercised with a view to protecting the rights of others, namely the interests of workers and the prevention of, inter alia, social dumping. However, in this case the Court emphasises that a majority of the Supreme Court found that the Framework Agreement and its system involving priority for registered dockworkers had little to do with the protection of workers. It held that the collective agreement demanded by NTF was “irregular”, and that the protection it afforded to members’ interests in working and pay conditions was “relatively indirect” (see paragraph 36 above). As regards the Administration Office, the Supreme Court regarded it as a “company” that engaged in “business activities in a market” – the market of unloading and loading activities – to which other operators wanted access, and as regards the announced boycott, it stated that its “primary effect” would be to deny Holship access to that market, which it wished to enter (see paragraphs 37 ‑ 38 above). 110. While it is true that the Supreme Court was heavily divided in relation to these findings of fact and law, the Court emphasises that it is in the first place for the domestic authorities to interpret and apply the domestic law and to establish the facts on the basis of the evidence before them (see, in relation to the right to strike under domestic law and Article 11 of the Convention, Hrvatski liječnički sindikat v. Croatia, no. 36701/09, § 56, 27 November 2014; and, in another context of Article 11, for example, Jhangiryan v. Armenia, nos. 44841/08 and 63701/09, § 114, 8 October 2020). 111. As regards the balancing exercise undertaken by the Supreme Court in the present case, the latter first pointed to the freedom of association established by the first paragraph of Article 101 of the Constitution, which had to be considered taking into account Article 11 of the Convention, before also pointing to the freedom of establishment under Article 31 of the EEA Agreement, which it referred to as a “fundamental freedom” thereunder. According to the Supreme Court: “these rights must be weighed against each other as part of a consideration of proportionality. This weighing of interests is similar in nature to the one carried out when restrictions are imposed on the freedom of establishment as a result of basic rights forming part of EU and EEA law. ... While the wording of the conditions for restricting human rights and rights under the EEA Agreement may differ, the nature of the considerations remain the same”. Referring to the possibility of different interpretations of the Constitution, and by the EFTA court and CJEU in this field, the reporting judge indicated that: “one cannot rule out that considerations of the European Court of Human Rights in weighing the freedom of assembly against the freedom of movement within the internal market may come to differ from those of the European Court of Justice and the EFTA Court. I cannot see, however, that there are any grounds on which to argue that such differences exist today”. 112. As is clear from paragraphs 30 to 51 above, the Supreme Court engaged in an extensive assessment of the conflicting fundamental right to collective action relied on by the applicant unions and the fundamental economic freedom under EEA law on which the employer relied. It indicated that the boycott must, among other things, be reconciled with the rights that follow from the EEA Agreement and that in consideration of proportionality a fair balance had to be struck between these rights. 113. It is clear from the balance struck by the domestic court that its characterisation of the boycott – that it was being used as a means to compel acceptance of a right of priority engagement and notably with the desired effect being to limit the access of other operators to the market for loading and unloading services – was central to its finding that such a fair balance had, in the particular circumstances of that case, been struck. In addition, it appeared relevant in the present case that the announced boycott targeted a third party. 114. As indicated previously (see paragraph 97), the Contracting States enjoy a wide margin of appreciation in this field, in view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the high degree of divergence between the domestic systems in this field (see, also, Unite the Union v. the United Kingdom (dec.), no. 65397/13, § 55, 3 May 2016). As regards the breadth of the margin, it is useful to remember that it will depend on the nature and extent of the restriction on the trade-union right in issue, the object pursued by the contested restriction, and the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right (see Demir and Baykara, cited above, § 86). Given the characteristics of the collective action identified by the Supreme Court (see the preceding paragraph and paragraphs 36-38 above), the breadth of the margin in the present case was clearly wide. 115. The Court also reiterates that, when exercising its supervisory function, its task is not to take the place of the national courts but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on. Where the balancing exercise has been undertaken by the national authorities in conformity in essence with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see, among many authorities, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 164, 27 June 2017). In this case, it is clear from the information available to the Court that following the Supreme Court judgment the relevant social partners negotiated and concluded a new collective agreement (see paragraph 63 above). The restriction of the application unions’ Article 11 rights did not as such prevent them from engaging in further collective bargaining, the information provided by the applicant unions to the effect that the absence in the renegotiated agreement of a similar priority clause had considerable impact on the organisation of dock work notwithstanding. Against that background, the Court does not consider that sufficiently “strong reasons” exist for it to substitute its views for that of the Supreme Court in this case. 116. Even though the Court considers, on the basis of the material before it and given the findings of fact and domestic law by the domestic court, that the latter acted within the margin of appreciation afforded to it in this area when declaring the boycott unlawful (see paragraphs 94 and 97 above), it considers it necessary, given the manner in which the domestic court expressed the balancing exercise to be effected, to note the following. 117. Firstly, the Court accepts that protecting the rights of others granted to them by way of EEA law may justify restrictions on rights under Article 11 of the Convention (see paragraph 91 above). However, it also notes that for a collective action to achieve its aim, it may have to interfere with internal market freedoms such as those at issue in the case before the Supreme Court. As noted by the Borgarting High Court in the present case, creating difficulties for the company in respect of loading and unloading, and the possible negative financial consequences flowing therefrom, would have been an important point of the boycott (see paragraph 22 above). In the same way that a right to strike does not imply a right to prevail, the degree to which a collective action risks having economic consequences cannot, therefore, in and of itself be a decisive consideration in the analysis of proportionality under Article 11, paragraph 2 of the Convention (see Ognevenko v. Russia, no. 44873/09, § 73, 20 November 2018). Even when implementing their obligations under EU or EEA law, the Court observes that Contracting Parties should ensure that restrictions imposed on Article 11 rights do not affect the essential elements of trade union freedom, without which that freedom would become devoid of substance. 118. Secondly, as follows from paragraphs 98 and 110 above, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU or EEA law, the Court’s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention. As highlighted in the submissions of the applicant unions in the present case, however, there is a risk that a domestic court which finds itself in a position such as that in which the Supreme Court found itself in the present case may balance a right under the Convention against a right under the EEA Agreement in a manner that would generally only be appropriate had the issue before it been a matter of conflicting fundamental rights under the Convention. From the perspective of Article 11 of the Convention, EEA freedom of establishment is not a counterbalancing fundamental right to freedom of association but rather one element, albeit an important one, to be taken into consideration in the assessment of proportionality under Article 11, paragraph 2. The risk just referred to is one which, while ensuring full compliance with their obligations under EEA or EU law, domestic courts must seek to avoid. 119. However, in the present case, as stated in paragraph 113 above, central to the domestic court’s finding was its characterisation of the purpose and nature of the announced boycott. While the Supreme Court did not approach the case before it strictly from the angle of the proportionality of the restriction imposed on the trade unions’ exercise of rights under Article 11 of the Convention, but concentrated to a great extent on the effects of the boycott on the freedom of establishment of the company targeted, the Court considers that it nonetheless remained within its wide margin of appreciation and advanced relevant and sufficient grounds to justify its final conclusion in the particular circumstances of this case. 120. On the basis of the above considerations, the Court finds that there has been no violation of Article 11 of the Convention. | The Court held that there had been no violation of Article 11 of the Convention, finding that, in the particular circumstances of this case, the Norwegian Supreme Court had advanced relevant and sufficient grounds to justify its final conclusion. With regard, in particular, to the purpose of the proposed action, the Court noted that the impugned boycott had aimed inter alia to ensure stable and safe working conditions for dockworkers. Furthermore, the priority right, which was one of the rights the proposed boycott had sought to defend, was based on a long-standing tradition domestically, and provided for in international law. In the light of the above, the impugned boycott, which the applicant unions had notified in advance in accordance with domestic law, was capable of falling within the scope of Article 11 of the Convention. On the merits, the Court further observed, in particular, that the Supreme Court’s judgment finding the intended boycott unlawful had entailed a “restriction” on the exercise of the trade unions’ rights which was prescribed by law and aimed to protect the “rights and freedoms” of others, in particular Holship’s right to freedom of establishment as guaranteed by the EEA Agreement. |
782 | Medical negligence and liability of health professionals | II. RELEVANT DOMESTIC LAW A. Damages for medical malpractice 44. In Bulgarian law, compensation for damage suffered as a result of medical malpractice can be obtained by bringing a claim for damages against the medical practitioner concerned or his employer. State-owned hospitals do not bear liability under the special provisions governing the no ‑ fault liability of public authorities (see реш. № 219 от 01.07.1998 г. по гр. д. № 26/1998 г., ВКС, петчл. с-в). 45. A report published in 2010 ( Безлов, Т., Илкова, Р., Чинарска, Д., Георгиев, Г., Ефективност на съдебната система при решаване на дела свързани с лекарски грешки Доклад. Международен институт по здравеопазване и здравно осигуряване. София, 2010 г. – Bezlov, T., Ilkova, R., Chinarska, D., Georgiev, G., Effectiveness of the judicial system in the examination of cases relating to medical errors. Report, International Healthcare and Health Insurance Institute, Sofia, 2010, p. 36) said that until 2000 there had been very few if any such claims. Although, according to a sociological survey carried out in 2009 and set out in the same report, during the previous five years only 2.2% of those who had become victim of a “medical mistake” had sought to vindicate their rights (it was unclear how many had done so through judicial channels) (ibid., pp. 10 and 30), in later years there have been a number of such cases. While in many instances the courts have dismissed the claims, there also have been cases in which they have awarded damages in relation to medical malpractice (examples include реш. № 1228 от 18.12.2008 г. по гр. д. № 4894/2007 г., ВКС, V г. о.; реш. № 565 от 19.06.2009 г. по гр. д. № 94/2008 г., ВКС, III г. о.; реш. № 1206 от 17.08.2009 г. по гр. д. № 402/2009 г., САС, ГК; реш. № 130 от 01.03.2010 г. по гр. д. № 640/2009 г., ВКС, III г. о.; реш. № 134 от 01.03.2010 г. по гр. д. № 529/2009 г., ВКС, г. о.; реш. № 508 от 18.06.2010 г. по гр. д. № 1411/2009 г., ВКС, III г. о.; реш. № 457 от 01.07.2010 г. на по гр. д. № 1264/2009 г., ВКС, III г. о.; реш. от 09.07.2010 г. по гр. д. № 8365/2009 г., СГС, appeal on points of law not admitted by опр. № 706 от 13.06.2012 г. по гр. д. № 1562/2011 г., ВКС, IV г. о.; реш. № 473 от 13.09.2010 г. по гр. д. № 1329/2009 г., ВКС, III г. о., which formed the basis for this Court ’ s decision in Daskalovi v. Bulgaria (dec.), no. 27915/06, 29 January 2013; реш. № 738 от 05.11.2010 г. по в. гр. д. № 901/2010 г., ПАС, ГК, appeal on points of law not admitted by опр. № 25 от 10.01.2012 г. по гр. д. № 233/2011 г., ВКС, IV г. о.; реш. № 628 от 19.11.2010 г. по гр. д. № 1711/2009 г., ВКС, III г. о.; реш. № 250 от 21.11.2012 г. по гр. д. № 1504/2011 г., ВКС, III г. о.; реш. № 120 от 12.06.2013 г. по гр. д. № 1330/2012 г., ВКС, III г. о.; реш. № 271 от 15.10.2013 г. по гр. д. № 1403/2012 г., ВКС, IV г. о.; реш. № 177 от 31.01.2014 г. по в. гр. д. № 2677/2013 г., САС, ГК; and реш. № 17 от 06.03.2015 г. по гр. д. № 3174/2014 г., ВКС, IV г. о. ). B. Experts in civil proceedings 46. By Article 157 § 1 of the Code of Civil Procedure 1952, the court had to appoint an expert if the elucidation of a point required special knowledge that the court did not have. Article 157 § 2 provided that if the subject matter was more complex the court could appoint three experts, with each of the two parties nominating one and the court determining the third one. It also provided that if the parties contested the conclusion of the initial experts, whether one of three, the court could appoint new experts. 47. The former Supreme Court has held that a court could only rely on an expert report that was duly reasoned (see реш. № 620 от 13.11.1991 г. по гр. д. № 722/ 19 91 г., ВС, III г. о. ). 48. Article 161 of the Code provided that in case of divergences of opinion, each group of experts had to set out its own conclusions, and that if the court was unable to weigh up those divergences, it had to ask the experts to make additional inquiries or to appoint new experts. Regulation 18(4) of Regulations no. 23 of 18 May 1994 on medical expert reports, superseded by regulation 17(4) of Regulations no. 2 of 26 October 2011 on medical expert reports, which is identically worded, provided that medical expert reports had to explain in detail their conclusions. 49. By Article 157 § 3, the court was not bound to accept the experts ’ conclusions but rather had to analyse them alongside the other evidence in the case. The former Supreme Court and the Supreme Court of Cassation have consistently emphasised this requirement, noting that it applied even if the parties had not contested the experts ’ conclusions (see реш. № 932 от 25.09.1991 г. по гр. д. № 699/1991 г., ВС, I г. о.; реш. № 1261 от 11.01.1995 г. по гр. д. № 2070/1994 г., ВС, IV г. о.; реш. № 622 от 04.08.2006 г. по гр. д. № 298/2005 г., ВКС, IV г. о.; реш. № 837 от 04.01.2008 г. по т. д. № 519/2007 г., ВКС, I т. о.; реш. № 1012 от 13.02.2008 г. по т. д. № 600/2007 г., ВКС, II т. о.; реш. № 1327 от 26.11.2008 г. по гр. д. № 5729/2007 г., ВКС, II г. о.; реш. № 823 от 11.01.2010 г. по гр. д. № 1763/2008 г., ВКС, IV г. о.; реш. № 393 от 01.10.2010 г. по гр. д. № 4703/2008 г., ВКС, II г. о.; реш. № 108 от 16.05.2011 г. по гр. д. № 1814/2009 г., ВКС, IV г. о.; and реш. № 762 от 20.07.2011 г. по гр. д. № 1371/2009 г., ВКС, I г. о. ). However, the court had to explain why it did not adhere to an expert opinion or why it chose to follow one expert opinion over another or none of the opinions (see реш. № 3152 от 26.12.1969 г. по гр. д. № 2365/ 19 69 г., ВС, II г. о.; реш. № 385 от 11.03.2003 г. по гр. д. № 1926/2001 г., ВКС, IV о.; and реш. № 1318 от 16.04.2009 г. по гр. д. № 5641/2007 г., ВКС, II г. о. ). In one case, the former Supreme Court held that an opinion ’ s being supported by more experts than another was not in itself a good reason for the court to follow it; the court had to rather have regard to the experts ’ qualifications (see реш. № 511 от 02.06.1993 г. по гр. д. № 83/ 19 93 г., ВС, I г. о. ). 50. In two recent cases, the Supreme Court of Cassation applied Article 157 § 3 to quash the lower courts ’ findings of no fault on the part of surgeons and re-examine the cases itself, ruling in favour of the claimants (see реш. № 508 от 18.06.2010 г. по гр. д. № 1411/2009 г., ВКС, III г. о., and реш. № 457 от 01.07.2010 г. по гр. д. № 1264/2009 г., ВКС, III г. о. ). 51. By Article 158 § 1, persons who were spouses, descendants or ascendants of a party, or related to a party by blood up to the fourth degree or by marriage up to the first degree, or who had a personal interest in the case, could not act as experts. Article 158 § 2 provided that a party could request the disqualification of an expert on any of these grounds. On the basis of this provision, the former Supreme Court has held that an employee cannot act as an expert in a case brought against his employer (see реш. № 640 от 05.10.1987 г. по гр. д. № 506/ 19 87 г., ВС, IV г. о. ). 52. By Article 160 § 1, before hearing the experts, the court had to remind them of the criminal liability for giving a false or biased opinion. (This liability is set out in Article 291 of the Criminal Code 1968, which makes it an offence wilfully or negligently to give a false expert opinion before a court of law, orally or in writing.) By Article 160 § 2, the experts had to promise that they would give their opinion without bias. 53. In March 2008 these provisions were superseded by Articles 195 to 203 of the Code of Civil Procedure 2007, which are for the most part similarly worded. However, Article 196 § 1 of the 2007 Code expands the grounds for the disqualification of an expert, saying that they are the same as those for the recusal of a judge. C. Informed consent 54. By section 25(3) of the People ’ s Health Act 1973, medical treatment, unless mandatory, could only be carried out with the patient ’ s consent. By section 31(1), medical practitioners had to explain to the patient, in an appropriate manner, the nature of the illness and the purpose of the medical treatment carried out. Section 32 provided that surgical operations could, except in life-threatening circumstances in which consent could not be obtained in time, only be carried out with the patient ’ s consent. 55. By section 87(1) of the Health Act 2005, medical procedures may as a rule only be carried out with the patient ’ s informed consent. By section 88(1), to obtain such consent medical practitioners must inform the patient of the diagnose and the character of the illness; the aims and nature of the envisaged treatment, the reasonable alternatives, and the prognosis; the risks, including side effects, pain or other inconveniences; and the likelihood of a positive effect of the envisaged treatment and the risk to the patient ’ s health if alternative methods are used or if treatment is declined. Section 88(2) provides that the information must be provided in a form and volume and at a time that enable the patient freely to choose his treatment. By section 89(1), in cases of surgery the information must be provided in writing. 56. The Supreme Court of Cassation has noted the difference between claims for damages relating to mistakes by medical practitioners and claims for damages based on lack of informed consent (see опр. № 1174 от 22.11.2013 г. по гр. д. № 4416/2013 г., ВКС, III г. о. ). THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 57. The applicant complained under Articles 3, 8 and 13 of the Convention of the lack of an effective mechanism enabling her to obtain compensation for the damage suffered as a result of the 2003 surgery. 58. The Court finds that this complaint is to be examined solely under Article 8 of the Convention (see, mutatis mutandis, Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005-I). This Article provides, in so far as relevant: “1. Everyone has the right to respect for his private ... life ...” A. The parties ’ submissions 59. The Government submitted that the proceedings brought by the applicant had fully complied with the requirements of Article 8 of the Convention. The courts had thoroughly and actively examined the case, admitting a number of expert reports and other evidence, but finding no medical malpractice. They had dealt with all relevant points, including whether the operation had been necessary, what was the proper approach by the operating team if the medical imaging tests were inconclusive, and whether the applicant had given informed consent to the operation and more generally whether she had been properly advised. 60. The applicant submitted that the authorities had failed to put in place a mechanism enabling victims of medical malpractice to obtain objective opinions by independent experts and have such cases duly investigated. She referred to a report by Open Society Justice Initiative which said, inter alia, that although medical experts bore criminal liability for giving false evidence, they had a tendency to exculpate their colleagues out of professional solidarity. She also referred to scholarly articles and a seminar in which that issue had been discussed. 61. The applicant went on to describe in detail the expert reports drawn up in her case, saying that they had arrived at mutually exclusive conclusions: that she did not have metastases but that it had at the same time been necessary to operate her; that bone metastases could not be visually detected but that the surgeon had acted in line with good medical practice when removing parts of her fourth and fifth ribs – but not of her sixth rib, where the suspected metastasis was located – on the basis of a visual and tactile inspection; that the applicant was in good health but had for years after the operation been prescribed expensive medicines with serious side ‑ effects. These points could not be properly explored without expert knowledge, but it had been open to the courts not to follow the expert opinions which had not elucidated them in a satisfactory way. However, if the courts had opted not to follow those opinions, they would have likewise had to dismiss the claim because under Bulgarian law, claimants in tort cases bore the burden of proof. The mechanism for establishing medical malpractice provided by the general law of tort was therefore deficient. It failed to achieve a fair balance between the applicant ’ s right to respect for her integrity and any hypothetical countervailing public interest. Such balance could only be struck by putting in place a special mechanism for dealing with medical malpractice that would resolve the problem with the lack of impartiality on the part of medical experts. B. The Court ’ s assessment 1. Admissibility 62. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) General principles 63. It is now well established that although the right to health is not as such among the rights guaranteed under the Convention or its Protocols (see Fiorenza v. Italy (dec.), no. 44393/98, 28 November 2000; Pastorino and Others v. Italy (dec.), no. 17640/02, 11 July 2006; and Dossi and Others v. Italy (dec.), no. 26053/07, 12 October 2010), the High Contracting Parties have, parallel to their positive obligations under Article 2 of the Convention, a positive obligation under its Article 8, firstly, to have in place regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients ’ physical integrity and, secondly, to provide victims of medical negligence access to proceedings in which they could, in appropriate cases, obtain compensation for damage (see Trocellier v. France (dec.), no. 75725/01, ECHR 2006-XIV; Benderskiy v. Ukraine, no. 22750/02, § § 61-62, 15 November 2007; Codarcea v. Romania, no. 31675/04, § § 102-03, 2 June 2009; Yardımcı v. Turkey, no. 25266/05, § § 55-57, 5 January 2010; Spyra and Kranczkowski v. Poland, no. 19764/07, § § 82 and 86-87, 25 September 2012; Csoma v. Romania, no. 8759/05, § § 41 and 43, 15 January 2013; and S.B. v. Romania, no. 24453/04, § § 65 ‑ 66, 23 September 2014 ). 64. For this obligation to be satisfied, such proceedings must not only exist in theory but also operate effectively in practice (see Gecekuşu v. Turkey (dec.), no. 28870/05, 25 May 2010, and Spyra and Kranczkowski, cited above, § 88). 65. This entails, inter alia, that the proceedings be completed within a reasonable time (see, for an example where this was not the case, Codarcea, cited above, § 106, and, for an example where this was the case, Spyra and Kranczkowski, cited above, § 91 ). 66. It also entails, like in the case of the parallel positive obligation under Article 2 of the Convention, the possibility to obtain effective medical expert examination of the relevant issues. For instance, the authorities must take sufficient care to ensure the independence, both formal and de facto, of the experts involved in the proceedings and the objectivity of their findings, since these are likely to carry crucial weight in the ensuing legal assessment of the highly complex issues of medical negligence (see Bajić v. Croatia, no. 41108/10, § 95, 13 November 2012, and Karpisiewicz v. Poland (dec.), no. 14730/09, § 59, 11 December 2012, as well as the earlier case of Skraskowski v. Poland (dec.), no. 36420/97, 6 April 2000, in which the same requirement was laid down in less explicit terms). A further requirement is that the experts examine carefully all relevant points and set out in enough detail the reasons for their conclusions (see Baldovin v. Romania, no. 11385/05, § 23, 7 June 2011, and Altuğ and Others v. Turkey, no. 32086/07, § § 78-81, 30 June 2015 ), and that the courts or other authorities dealing with the case then scrutinise properly those conclusions (see Csoma, § 56, and Altuğ and Others, § 82, both cited above). A system in which an opinion given by a specialised institution is automatically regarded as conclusive evidence which precludes further expert examination of the relevant issues falls afoul of this requirement (see Eugenia Lazăr v. Romania, no. 32146/05, § § 76-80, 16 February 2010; Baldovin, cited above, § 24; and Csoma, cited above, § 61 ). 67. At the same time, the High Contracting Parties have a margin of appreciation in choosing how to comply with their positive obligations under the Convention (see, as a recent authority, Lambert and Others v. France [GC], no. 46043/14, § 144, ECHR 2015 (extracts)), and enjoy considerable freedom in the choice of the means calculated to ensure that their judicial systems meet its requirements (see, albeit in different contexts, König v. Germany, 28 June 1978, § 100, Series A no. 27; Taxquet v. Belgium [GC], no. 926/05, §§ 83 and 84, 16 November 2010; and Finger v. Bulgaria, no. 37346/05, § 120, 10 May 2011). 68. Also, the mere fact that proceedings concerning medical negligence have ended unfavourably for the person concerned does not in itself mean that the respondent State has failed in its positive obligation under Article 8 of the Convention (see, in the context of Article 2 of the Convention, Besen v. Turkey (dec.), no. 48915/09, § 38 in fine, 19 June 2012). 69. Lastly, it is well established that the High Contracting Parties also have a positive obligation under Article 8 of the Convention to have in place regulations ensuring that medical practitioners consider the foreseeable consequences of planned medical procedures on their patients ’ physical integrity and inform patients of these beforehand in such a way that they are able to give informed consent (see Trocellier; Codarcea, § 105; Gecekuşu; and Csoma, § 42, all cited above). (b) Application of these principles 70. In Bulgaria, as in many other High Contracting Parties (see, for instance, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V; Iversen v. Denmark, no. 5989/03, § 54, 28 September 2006; Colak and Tsakiridis v. Germany, nos. 77144/01 and 35493/05, § § 19-20, 5 March 2009; and Šilih v. Slovenia [GC], no. 71463/01, § 95, 9 April 2009 ), compensation for medical malpractice can be claimed under the law of tort or contract (see paragraph 44 above). In other High Contracting Parties, such claims, if directed against public hospitals, are examined under rules governing the liability of public authorities for damage (see Draon v. France [GC], no. 1513/03, § 37 and 47-48, 6 October 2005, and Byrzykowski v. Poland, no. 11562/05, § 77, 27 June 2006 ). Some High Contracting Parties also operate no-fault compensation schemes (see, for instance, Lopez v. France (dec.), no. 45325/06, 2 February 2010 ). In view of the broad margin of appreciation enjoyed by the High Contracting Parties in laying down their health care-policy (see Pentiacova and Others, cited above; Shelley v. the United Kingdom (dec.), no. 23800/06, 4 January 2008; and Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 119, ECHR 2012 (extracts) ), and in choosing how to comply with their positive obligations and organise their judicial systems (see paragraph 67 above), there is no basis on which to hold that the Convention requires a special mechanism which facilitates the bringing of medical malpractice claims or a reversal of the burden of proof in such cases, as suggested by the applicant. It should further be borne in mind that in discharging their positive obligations towards the alleged victims of medical malpractice, the authorities must also have regard to counter-considerations, such as the risk of unjustifiably exposing medical practitioners to liability, which can compromise their professional morale and induce them to practise, often to the detriment of their patients, what has come to be known as “defensive medicine”. 71. It cannot be said that seeking compensation for medical malpractice in Bulgaria by way of a claim for damages is a possibility that only exists in theory. While apparently difficult to make out, medical malpractice has been established and has led to awards of damages in a number of cases (see paragraph 45 above). 72. The Court is furthermore unable to accept that the objectivity of the expert opinions in such cases can automatically be called into doubt by the fact that the experts are medical practitioners who are under an ethical duty not to criticise their colleagues. In Csősz v. Hungary (no. 34418/04, § § 31 and 35, 29 January 2008), in the face of an almost identical submission, the Court held that it was normal for the expert opinions in such cases to be given by medical practitioners. While those practitioners do have an ethical duty not to unduly criticise their colleagues, when acting as court-appointed experts they also bear criminal liability – of which they must be advised before they give evidence – for giving a false opinion (see paragraph 52 above). This must be regarded as a serious deterrent even if prosecutions for such offences are, in view of the complexity of the subject matter, difficult to mount in practice. There is no basis on which to hold that the Convention requires that medical expert evidence be drawn from specialised institutions. On the contrary, examples in the Court ’ s case-law show that conferring such institutions a key role in medical malpractice cases can in some instances prevent persons who have become victims of such malpractice from effectively vindicating their rights (see Eugenia Lazăr, §§ 78-80, and S.B. v. Romania, §§ 70-74, both cited above). 73. Furthermore, Bulgarian law lays down several safeguards designed to ensure the reliability of expert evidence. Experts whose impartiality is in doubt may be disqualified (see paragraphs 51 above), and experts must give cogent reasons for their conclusions, so as to enable the courts to weigh up any divergences of opinion (see paragraphs 46 - 48 above). The courts, for their part, can appoint new experts if one of the parties contests an expert report (see paragraph 46 above), and are not bound uncritically to accept expert evidence – on the contrary, they must scrutinise it carefully (see paragraphs 49 and 50 above). Indeed, they have done so in medical malpractice cases (see paragraph 50 above). 74. There is no evidence that these safeguards were not properly applied in the applicant ’ s case or that the experts whose opinions formed the basis for the courts ’ rulings in the case lacked the requisite objectivity. The courts disqualified one expert because he was employed by the defendant hospital, and then said that they would not have regard to his conclusions (see paragraphs 25, 28 and 35 above, and contrast, mutatis mutandis, Bajić, cited above, § § 98-101 ). They did not simply admit the written reports drawn up by the other experts, many of which were from another town (see paragraphs 26, 32 and 38 above), but on each occasion heard them give evidence in open court, in the presence of counsel for the applicant, who were able to, and did, pose questions (see paragraphs 23, 27, 32, 34 and 40 above). The courts several times ordered supplementary reports and fresh reports by new experts, to cast further light on points which had remained unclear or had been contested (see paragraphs 24, 26 and 30 - 32 above, and compare with Besen, cited above, § 38, and Eugenia Lazăr, cited above, § § 76-77 ). 75. With regard to the question whether the courts then duly scrutinised the expert evidence (see paragraph 66 above), it should be noted that the Plovdiv Regional Court and the Plovdiv Court of Appeal both analysed that evidence in some detail ( see paragraphs 28 and 35 above ), and that the Supreme Court of Cassation then remitted the case to the Plovdiv Court of Appeal for it to remedy some omissions in that regard (see paragraph 37 above). Following that remittal, the Plovdiv Court of Appeal re-examined the case not only on the basis of the earlier expert reports, but also of a fresh and expanded report (see paragraphs 38 and 39 above). While the applicant disputed the experts ’ conclusions on a number of points, it does not appear that, following the remittal of the case, the experts left any relevant issue without consideration (contrast Altuğ and Others, cited above, § § 77-81 ), or that the Plovdiv Court of Appeal, whose judgment does not appear arbitrary, then failed duly to scrutinise their conclusions. In particular, that court gave reasons why it chose to follow the opinion of the majority of the experts rather than that of the only dissenting expert, Dr V.T., saying that even though the question whether it had been advisable to operate on the applicant could be debated theoretically, the medical team which had treated her had acted on the basis of their assessment of an exigently practical situation (see paragraph 41 above). It is not for this Court, which is not a court of appeal from the national courts, to gainsay that court ’ s findings on these points (see Yardımcı, cited above, § 59 ). 76. The Court does not overlook that the available evidence tends to suggest that the surgeon did not properly inform the applicant of all the foreseeable consequences of the planned operation that he carried out on her. The experts who gave evidence in the proceedings for damages said that there was no reliable way of establishing the precise location or even the presence of a metastasis in a rib before or during the operation, because none of the medical imaging methods used before the operation could give certainty on that point and because histological testing of bone tissue required time, which meant that no histological conclusion could be obtained during the operation (see paragraphs 26, 31, 33 and 39 above) It does not appear that the applicant was fully made aware of this uncertainty and its consequences before agreeing to be operated upon. On the contrary, the surgeon appears to have repeatedly given her assurances in that respect (see paragraph 9 above), which the evidence obtained in the ensuing proceedings proved to be untenable. However, it does not appear that the applicant specifically emphasised that aspect of the case, which was predicated on the broader and somewhat different allegation that the surgeon had acted negligently when operating on her (see paragraphs 17 and 56 above). The Bulgarian courts cannot therefore be faulted for not delving into that issue in more depth. 77. In view of all this, it cannot be said that the authorities did not provide the applicant an effective procedure enabling her to obtain compensation for the medical malpractice to which she alleged to have fallen victim. 78. There has therefore been no breach of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 79. The applicant complained under Article 6 § 1 of the Convention that as a result of the lack of a system effectively ensuring the impartiality of medical experts in proceedings relating to medical malpractice she had been put at a substantial disadvantage vis-à-vis the surgeon and the hospital in the course of the proceedings for damages against them, and had not had effective access to a court in those proceedings. 80. Article 6 § 1 of the Convention provides, in so far as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...” A. The parties ’ submissions 81. The Government submitted that the proceedings brought by the applicant had been fair. They had been conducted in the usual way, with the participation of medical experts to elucidate points that required special knowledge. The independence and impartiality of those experts had been open to review by the courts, at the request of the parties to the case. That manner of proceeding was fully consistent with Article 6 of the Convention. 82. The applicant submitted that medical experts, who were often highly qualified practitioners in a narrow field of study whose conclusions could not easily be challenged by a layperson, were indispensable in medical malpractice cases and usually predetermined their outcome. Defendant medical practitioners in such cases were far better placed than claimants to scrutinise the validity of their conclusions. There were no rules effectively ensuring the objectivity of their conclusions, whereas they had a tendency to exculpate their colleagues out of professional ethics. The risk of incurring criminal liability for giving false conclusions was not a sufficient deterrent because, in view of the highly specialised subject matter, the risk that such an offence would be exposed was a very slim. B. The Court ’ s assessment 1. Admissibility 83. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 84. The question whether the Bulgarian authorities took sufficient care to ensure the independence of the medical experts involved in the proceedings and the objectivity of their conclusions, which was already examined under Article 8 of the Convention (see paragraphs 72 - 74 above), could also be examined by reference to its Article 6 § 1 (see, mutatis mutandis, Mantovanelli v. France, 18 March 1997, § § 33-36, Reports of Judgments and Decisions 1997-II; Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 47, 5 July 2007; and Placì v. Italy, no. 48754/11, § § 74-80, 21 January 2014 ). But, in view of its findings on this point under Article 8, the Court does not consider that the applicant was put at a substantial disadvantage vis-à-vis the surgeon or the hospital in the course of the proceedings for damages that she brought against them, or that those proceedings did not afford her effective access to a court. 85. There has therefore been no breach of Article 6 § 1 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention, finding that it could not be said that the authorities had not provided the applicant an effective procedure enabling her to obtain compensation for the medical malpractice to which she alleged to have fallen victim. |
444 | Medical assistance for prisoners with a physical illness | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of the Republic of Azerbaijan 92. Article 46 (III) of the Constitution of the Republic of Azerbaijan reads: “No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...” B. Code of Criminal Procedure (“the CCrP”) 93. In accordance with Article 37 of the CCrP, criminal proceedings are instituted on the basis of a complaint by the victim of a criminal offence. Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings may challenge the actions or decisions of the prosecution authorities before a court. Article 449 provides that a victim or his counsel may challenge such actions or decisions as, inter alia, the prosecution authorities ’ refusal to institute criminal proceedings or to terminate them. The judge examining the lawfulness of the prosecution authorities ’ actions or decisions may quash them if he or she finds them to be unlawful (Article 451). This decision is amenable to appeal in accordance with the procedure established in Articles 452 and 453 of the CCrP. C. Internal Disciplinary Rules of Pre-trial Detention Facilities adopted by Decision No. 63 of 26 February 2014 of the Cabinet of Ministers 94. Section 9 provides that detainees are entitled to receive one parcel a week. Detainees suffering from serious illness (if there is a medical report) are entitled to receive an unlimited number of parcels. Section 9.3 requires the person who provides a detainee with a parcel to identify him or herself, without requiring him or her to show any family or other link between them. D. List of Serious Illnesses Precluding the Detention of Prisoners adopted by the Ministry of Health on 26 October 2010 95. Section 6.2 indicates that grade 3 hypertension is among the serious illnesses precluding the detention of prisoners if it leads to one of the three following situations: recurrent transmural myocardial infarction (6.2.1), third -stage circulatory inefficiency (6.2.2) or end-stage kidney failure (6.2.3). E. Code of Administrative Procedure (“the CAP”) and the domestic remedy invoked by the Government 96. The CAP, adopted on 30 December 2009, entered into force on 1 January 2011. Article 2 sets out the procedural rules relating to administrative law disputes, including those concerning the acts, actions or inactions of administrative organs affecting individuals ’ rights and liberties. Following the entry into force of the CAP, on 10 June 2011 Chapter XXVI of the Code of Civil Procedure establishing the procedural rules relating to disputes between individuals and administrative organs was deleted. 97. Under the CAP, an action may be lodged to dispute the lawfulness of an administrative act (Article 32), to request the court to require an administrative organ to adopt an administrative act (Article 33), or to request the court to require an administrative organ to take action other than the adoption of an administrative act or refrain from taking certain action (Article 34). 98. Chapter VII establishes the rules relating to the application of temporary defence measure ( müvəqqəti xarakterli müdafiə tədbiri ). In particular, under Article 40, an interested party may request a court to apply a temporary defence measure. Requests may be submitted before lodging a complaint with the court or in the course of the administrative proceedings (Article 40.1). The court may grant an injunction requiring the respondent party to take or refrain from certain action, or to tolerate certain action (Article 40.3). If the interested party lodges an administrative complaint with an administrative organ, the request for application of a temporary defence measure must be lodged with the same administrative organ. If the latter does not grant the request within fifteen days, the interested party may complain to a court under the procedure established in Articles 40.1 and 40.2 (Article 40.4). The CAP does not, however, provide any specific time ‑ limit for the examination of a request for application of a temporary defence measure by the domestic courts. 99. The Government provided a copy of a decision of Baku Administrative Economic Court No. 1 dated 24 July 2012 ( A.I. v. the Prison Service of the Ministry of Justice ), submitting that the decision in question constituted an example of the effectiveness of one of several available domestic remedies. In that case, a first - instance court, in the course of the administrative proceedings, decided to apply a temporary defence measure ordering the Prison Service to transfer a detainee to a medical facility for ten days to undergo surgery. The Government did not provide any further information about the final outcome of those proceedings. III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS A. Extracts from the 3 rd General Report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) covering the period 1 January to 31 December 1992 100. The requirements concerning the organisation of health care services in detention facilities were described by the CPT in its 3 rd General Report (CPT/Inf (93) 12 - Publication Date: 4 June 1993). The relevant part of the Report reads as follows: “ a. Access to a doctor 33. When entering prison, all prisoners should without delay be seen by a member of the establishment ’ s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources. It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene. 34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay. ... 35. A prison ’ s health care service should at least be able to provide regular out ‑ patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists. As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification. Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ... b. Equivalence of care i) general medicine 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). 39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient ’ s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service. ... c. Patient ’ s consent and confidentiality 45. Freedom of consent and respect for confidentiality are fundamental rights of the individual. They are also essential to the atmosphere of trust which is a necessary part of the doctor/patient relationship, especially in prisons, where a prisoner cannot freely choose his own doctor. i) patient ’ s consent 46. Patients should be provided with all relevant information (if necessary in the form of a medical report) concerning their condition, the course of their treatment and the medication prescribed for them. Preferably, patients should have the right to consult the contents of their prison medical files, unless this is inadvisable from a therapeutic standpoint. They should be able to ask for this information to be communicated to their families and lawyers or to an outside doctor. 47. Every patient capable of discernment is free to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances which are applicable to the population as a whole. ... ii) confidentiality 50. Medical secrecy should be observed in prisons in the same way as in the community. Keeping patients ’ files should be the doctor ’ s responsibility. 51. All medical examinations of prisoners (whether on arrival or at a later stage) should be conducted out of the hearing and - unless the doctor concerned requests otherwise - out of the sight of prison officers. Further, prisoners should be examined on an individual basis, not in groups. ... ” B. Extracts from Recommendation (Rec(2006)2) of the Committee of Ministers to Member States on the European Prison Rules, adopted on 11 January 2006 (“ the European Prison Rules”) 101. The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows: “ Part I Basic principles 1. All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. 4. Prison conditions that infringe prisoners ’ human rights are not justified by lack of resources. ... Scope and Application 10.1. The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction. ... Part III Health Health care 39. Prison authorities shall safeguard the health of all prisoners in their care. Organisation of prison health care 40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation. 40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy. 40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation. 40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer. 40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose. Medical and health care personnel 41.1 Every prison shall have the services of at least one qualified general medical practitioner. 41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency. ... 41.4 Every prison shall have personnel suitably trained in health care. ... Duties of the medical practitioner 42.1 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary. ... 42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to: a. observing the normal rules of medical confidentiality; b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment; c. recording and reporting to the relevant authorities any sign or indication that prisoners may have been treated violently; ... 43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. ... Health care provision 46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison. 46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.” C. Extracts from the UN Committee Against Torture ’ s concluding observations on the fourth periodic report of Azerbaijan 102. In November 2015 the UN Committee Against Torture considered the fourth periodic report of Azerbaijan (CAT/C/ AZE/4 ) and adopted, inter alia, the following concluding observations at its 1382 nd meeting (CAT/C/SR.1382) held on 26 November 2015: “ Arbitrary imprisonment and ill-treatment of human rights defenders 10. The Committee is deeply concerned by consistent and numerous allegations that a number of human rights defenders have been arbitrarily deprived of their liberty, subjected to ill-treatment, and in some cases have been denied adequate medical treatment in retaliation for their professional activities, such as: Leyla and Arif Yunus ... 11. The State party should: (a) Investigate promptly, thoroughly and impartially all allegations of arbitrary arrest, denial of adequate medical treatment, and torture or ill treatment of human rights defenders, including those listed above, prosecute and punish appropriately those found guilty, and provide the victims with redress; (b) Release human rights defenders who are deprived of their liberty in retaliation for their human rights work; ” D. Joint Statement of the UN Special Rapporteurs and the Chair ‑ Rapporteur of the UN Working Group on Arbitrary Detention dated 20 August 2015 103. On 20 August 2015 the UN Special Rapporteurs on the situation of human rights defenders, on the rights to freedom of peaceful assembly and of association, on freedom of opinion and expression, on the independence of judges and lawyers and on the right to health made a joint statement with the Chair-Rapporteur of the UN Working Group on Arbitrary Detention condemning the applicants ’ criminal conviction. They expressed concern about the serious deterioration of the applicants ’ health during their extended period of pre-trial detention and called “on the Azerbaijani authorities to immediately provide them with adequate medical care”. THE LAW I. ARTICLE 34 OF THE CONVENTION 104. The applicants complained that the Government had failed to comply with the letter and spirit of the interim measure indicated by the Court under Rule 39 and had thus violated their right of individual application. They relied on Article 34 of the Convention, which reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Rule 39 of the Rules of Court provides: “1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings. 2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers. 3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated. 4. The President of the Court may appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures. ” A. The parties ’ submissions 105. The Government disputed the applicants ’ submissions, pointing out that they had complied with the interim measure indicated by the Court. In this connection, they maintained that they had submitted all the material and documents concerning the applicants ’ state of health. 106. They further submitted that, although all the monthly information reports concerning the applicants ’ state of health had been forwarded to the applicants by the Court, the applicants had failed to comment or to request any further information about them in this regard from the Government. In these circumstances, the applicants had been precluded from raising a complaint in their observations concerning the implementation of the interim measure. 107. The applicants argued that the Government had failed to comply with the interim measure indicated by the Court on 30 September 2014. In this connection, they noted that, although the interim measure had indicated to the Government to inform the Court, on a monthly basis, of the applicants ’ state of health and medical treatment, they had failed to provide any medical evidence in this respect. In particular, they pointed out that the Government had contented themselves with repeating in their very brief monthly reports sent to the Court that “the applicants ’ state of health was satisfactory and stable” or “the applicants ’ state of health was under constant medical supervision ”, without submitting any documents concerning the medical prescriptions or recommendations of the doctors who had examined them. 108. They further submitted that the Government ’ s failure to provide the Court with medical evidence regarding their state of health had fundamentally undermined the protective purpose of the interim measure in question. They noted in this connection that the Court had indicated to the Government to provide the first applicant with adequate medical treatment in prison and, if such treatment was unavailable in prison, to ensure her immediate transfer to an appropriate medical facility for the duration of the proceedings before the Court. However, the Government ’ s failure to provide the Court with medical evidence regarding her medical treatment in prison had made it impossible for the Court to assess whether she had been provided with adequate medical treatment or whether such treatment had been unavailable in prison and that she should be transferred to an appropriate medical facility. B. The Court ’ s assessment 1. General principles 109. The Court reiterates that, pursuant to Article 34 of the Convention, Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of the right of individual application, and this has been consistently reaffirmed as a cornerstone of the Convention system (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 102, ECHR 2005 ‑ I ). Although the object of Article 34 is essentially that of protecting an individual against any arbitrary interference by the authorities, it does not merely compel States to abstain from such interference. In addition to this primarily negative undertaking, there are positive obligations inherent in Article 34 requiring the authorities to furnish all the necessary facilities to make possible the proper and effective examination of applications. Such an obligation will arise in situations where applicants are particularly vulnerable (see Naydyon v. Ukraine, no. 16474/03, § 63, 14 October 2010; Savitskyy v. Ukraine, no. 38773/05, § 156, 26 July 2012; and Iulian Popescu v. Romania, no. 24999/04, § 33, 4 June 2013). 110. According to the Court ’ s established case-law, a respondent State ’ s failure to comply with an interim measure entails a violation of the right of individual application. The Court cannot emphasise enough the special importance attached to interim measures in the Convention system. Their purpose is not only to enable an effective examination of the application to be carried out, but also to ensure that the protection afforded to the applicant by the Convention is effective. Such measures subsequently allow the Committee of Ministers to supervise the execution of the final judgment. Interim measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention (see Mamatkulov and Askarov, cited above, § 125; Khloyev v. Russia, no. 46404/13, § 60, 5 February 2015; and Patranin v. Russia, no. 12983/14, § 46, 23 July 2015). 111. The crucial significance of interim measures is further highlighted by the fact that the Court issues them, as a matter of principle, only in truly exceptional cases and on the basis of a rigorous examination of all the relevant circumstances. In most of these cases, the applicants face a genuine threat to life and limb, with the ensuing real risk of grave, irreversible harm in breach of the core provisions of the Convention. The vital role played by interim measures in the Convention system not only underpins their binding legal effect on the States concerned, as upheld by the established case-law, but also commands that the utmost importance be attached to the question of the States Parties ’ compliance with the Court ’ s indications in that regard (see Amirov v. Russia, no. 51857/13, § 67, 27 November 2014, and Khloyev, cited above, § 61). 112. A complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Ergi v. Turkey, 28 July 1998, § 105, Reports of Judgments and Decisions 1998 ‑ IV, and Cooke v. Austria, no. 25878/94, § 46, 8 February 2000). Article 34 will be breached if the authorities of a Contracting State fail to take all the steps which could reasonably be taken in order to comply with an interim measure indicated by the Court (see Paladi v. Moldova [GC], no. 39806/05, § 88, 10 March 2009 ). It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation (see Paladi, cited above, § 92; Gror v. Albania, no. 25336/04, § 18 4, 7 July 2009; and Patranin, cited above, § 48 ). 2. Application to the present case 113. The Court notes that in the present case, on 30 September 2014 it decided to indicate to the Azerbaijani Government, under Rule 39 of the Rules of Court, in the interests of the parties and the proper conduct of the proceedings before the Court, to provide both applicants with adequate medical treatment in prison, and, if such treatment was unavailable in prison, to ensure that the first applicant was immediately transferred to an appropriate medical facility for the duration of the proceedings before the Court. The Court also requested the Government to inform it, on a monthly basis, of the applicants ’ state of health and medical treatment. 114. Following the indication of the interim measure, on 3 November 2014 the Government provided the Court with a letter containing an overview of the medical examinations that the applicants had undergone in October 2014. The letter indicated that the applicants ’ state of health was stable and did not require their transfer to a specialist medical facility. No medical documents were attached. 115. Similar letters containing general information about the applicants ’ state of health and medical examinations in detention had been sent monthly by the Government to the Court from November 2014 to December 2015 (see paragraphs 79-85 above). However, none of them contained any medical documents concerning the medical treatment provided to the applicants in prison. 116. In this connection, the Court observes that the Government did not dispute their obligation under Article 34 of the Convention to comply with the interim measure indicated by the Court. Rather, they disputed the applicants ’ submissions and insisted that they had complied with the interim measure in its entirety by informing the Court, on a monthly basis, of the applicants ’ state of health and medical treatment and submitting all the material and documents in this respect. 117. However, the Court is not convinced by the Government ’ s argument and notes at the outset that it cannot accept their submissions that all the material and documents concerning the applicants ’ state of health and medical treatment had been submitted to the Court. In particular, it observes that, although from November 2014 to December 2015 the Government sent monthly reports to the Court containing information about the applicants ’ state of health and medical treatment, none of them contained any medical documents in support of the information submitted. The only medical documents submitted by the Government following the indication of the interim measure were those submitted in their observations of 27 May 2015 concerning the results of the applicants ’ medical tests and examinations conducted between their arrest and 12 March 2015. 118. In this connection, the Court reiterates that whilst the formulation of an interim measure is one of the elements to be taken into account in the Court ’ s analysis of whether a State has complied with its obligations under Article 34, the Court must have regard not only to the letter but also to the spirit of the interim measure indicated (see Paladi, § 91, and Patranin, § 52, both cited above ) and, indeed, to its very purpose. The Court notes in this respect that the main purpose of the interim measure in the present case ‑ and the Government did not claim to be unaware of this – was to prevent the applicants ’ exposure to inhuman and degrading suffering in view of their poor health and to ensure that they received adequate medical treatment in prison. In these circumstances, it was crucial for the Court to be provided information by the Government on a regular basis concerning the applicants ’ state of health supported by the relevant medical documents, without which the Court would not be able to assess the quality of the treatment the applicants received in prison and the adequacy of the conditions of their detention for their medical needs. In this connection, the Court agrees with the applicants ’ argument that the Government ’ s failure to provide the Court with medical evidence regarding their state of health had made it impossible for the Court to assess whether the first applicant was receiving adequate medical treatment, or, whether such treatment was unavailable in prison and that she should be transferred to an appropriate medical facility, as indicated by the interim measure of 30 September 2014. 119. The Court thus considers that the Government ’ s failure to provide the Court with the relevant medical documents with their monthly information reports impaired the very purpose of the interim measure, preventing it from being able to establish whether the applicants were receiving adequate medical treatment in detention as required by the interim measure. Moreover, the Government did not explain their failure to comply with the interim measure nor did they demonstrate any objective impediment preventing compliance with it. 120. Consequently, the Court concludes that in the present case the State has failed to comply with the interim measure indicated under Rule 39 of the Rules of Court, in breach of its obligation under Article 34 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION AS REGARDS THE APPLICANTS ’ MEDICAL TREATMENT IN DETENTION 121. The applicants complained that they had not been provided with adequate medical treatment in detention and that their state of health had been incompatible with their conditions of detention. Article 3 of the Convention provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The parties ’ submissions 122. The Government submitted that the applicants had failed to exhaust domestic remedies, without specifying which remedies had been effective and available. In this connection, they submitted in a general manner that the applicants had failed to bring before the domestic authorities the complaints made subsequently to the Court. 123. The Government further relied on the case of A.I. v. the Prison Service of the Ministry of Justice, pointing out that the decision in question represented an example of the effectiveness of one of several available domestic remedies. 124. The applicants disagreed with the Government ’ s submissions and reiterated their complaints. They noted that there had been no effective domestic remedies in respect of their complaints relating to their medical treatment in detention and the compatibility of their state of health with their conditions of detention. In this connection, they submitted that the Government had failed to demonstrate that there had been an effective remedy available both in theory and in practice capable of providing redress in respect of their complaints and offering reasonable prospects of success. 2. The Court ’ s assessment 125. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should be made first to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, although there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996 ‑ IV, and Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports 1996-VI). Moreover, where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, the preventive and compensatory remedies have to be complementary in order to be considered effective (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 98, 10 January 2012, and Dirdizov v. Russia, no. 41461/10, § 73, 27 November 2012 ). 126. As regards the distribution of the burden of proof, it is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available both in theory and in practice at the relevant time, that is to say that it was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Akdivar and Others, cited above, § 68, and Muradova v. Azerbaijan, no. 22684/05, § 84, 2 April 2009). 127. Turning to the circumstances of the present case, the Court observes at the outset that the Government merely noted that the applicants had not lodged any complaints concerning their medical treatment in detention. They neither specified what type of remedy would have been an effective remedy in their view, nor provided any further information as to how such a remedy could have prevented the alleged violation or its continuation or provided the applicants with adequate redress ( compare Popov v. Russia, no. 26853/04, § 205, 13 July 2006). 128. Inasmuch as the Government ’ s contention that the case of A.I. v. the Prison Service of the Ministry of Justice constituted an example of the effectiveness of one of several available domestic remedies could be understood to mean that the applicants should have lodged a complaint against the Prison Service under the CAP in the domestic courts, the Court observes at the outset that under the CAP a complaint may be lodged with the domestic courts against any administrative act, action or inaction of an administrative organ violating individuals ’ rights and liberties. The Court further observes that, although Article 40 of the CAP allows a judge to grant an injunction as a temporary defence measure requiring the respondent party to take or refrain from taking some action, no specific time- limit was provided for the examination of a request for application of a temporary defence measure (see paragraph 9 8 above). In this connection, the Court considers that, even assuming that such a complaint constituted an effective remedy in theory, the Government failed to show the existence of settled national case-law that would prove the effectiveness of the remedy in question, particularly as regards complaints concerning medical treatment in detention. 129. The Court reiterates that, in order to be “effective”, a remedy must be available not only in theory but also in practice. This means that the Government should normally be able to illustrate the practical effectiveness of the remedy with examples of domestic case-law (see Dirdizov, cited above, § 88). In the present case, the Government relied solely on the decision of Baku Administrative Economic Court No. 1 dated 24 July 2012, in which a temporary defence measure was ordered under Article 40 of the CAP to transfer a detainee from a penal facility to a medical facility to undergo surgery (see paragraph 99 above). However, the decision in question did not recognise the violation of the detainee ’ s rights on account of a lack of medical treatment in prison or the incompatibility of his state of health with the conditions of detention. Nor did it provide the detainee with adequate redress for the violation. In any event, the Court reiterates that a single case cited by the Government is insufficient to show the existence of settled domestic practice that would prove the effectiveness of a remedy (see Horvat v. Croatia, no. 51585/99, § 44, ECHR 2001 ‑ VIII, and Varga and Others v. Hungary, nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13, § 53, 10 March 2015 ). It follows that the Court cannot but conclude, on the basis of the information before it, that a complaint under the CAP before the domestic courts could not be considered an effective remedy. 130. For the above reasons, the Court finds that the complaint cannot be rejected for non-exhaustion of domestic remedies. It considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 131. The Government claimed that the applicants had received comprehensive medical treatment in detention. They submitted that the applicants had been under constant medical supervision and that there had been no deterioration in their health. They referred in this connection to various medical examinations that the applicants had undergone during their detention. As to the first applicant, the Government relied on the results of examinations on 31 July, 19 August, 12 November and 29 December 2014, as well as on 26 January and 12 March 2015. They also submitted an undated note signed by C.W. indicating that her medical examinations had been conducted in his presence in accordance with the internationally accepted diagnostic rules and that he had been immediately informed of their results. The Government further referred to the first applicant ’ s “ bad faith ” in refusing on many occasions to be seen by the doctors. 132. As to the second applicant, the Government submitted that he had undergone a monthly general medical examination, but these had not revealed any deterioration in his health. In this connection, they submitted the results of an undated blood test and a biochemical test, as well as three undated electrocardiographs. 133. The Government also submitted that the applicants ’ conditions of detention complied with international standards. In particular, the first applicant was held with four other detainees in a cell measuring 26.32 sq. m designed to hold six detainees. The cell was adequately lit and ventilated. She was provided with food, water, bedding, clothing and other essentials. As regards the second applicant, he was held alone in a cell measuring 8 sq. m designed to hold two inmates. The cell was adequately lit and ventilated. He was provided with hot and cold water, bedding, clothing and other essentials. 134. The applicants disagreed with the Government ’ s submissions, arguing that they had not been provided with the requisite medical assistance in detention. In this connection, they complained that they had been unable to obtain effective medical care, which had led to a serious deterioration in their condition and subjected them to severe physical and mental suffering. They also complained that their conditions of detention had not been adapted to their state of health. 135. As regards the first applicant, the applicants noted that, although she had been examined on several occasions by C.W. within the framework of the Government ’ s cooperation with the European Parliament, the Government had failed to provide her or the Court with the medical recommendations or prescriptions made by C.W. following these examinations. Moreover, when on 21 February 2015 they had directly asked C.W., through their lawyers, for the documents in question, they could not obtain them. C.W. had indicated that confidentiality was a strict condition of his cooperation with the European Parliament and that, in the event of information being leaked out, he would be prevented from entering Azerbaijan for subsequent examinations of the first applicant. They also rejected the Government ’ s reliance on the first applicant ’ s “ bad faith ” in refusing to be seen by the doctors, noting that her refusal had been a protest against the lack of adequate medical treatment and her unlawful detention. As regards the adaptation of the first applicant ’ s conditions of detention to her state of health, the applicants submitted that she had been deprived of diabetic food and medication from 5 to 23 August 2014. Moreover, although the Government submitted that she had been provided with special diabetic food, they had failed to specify what had actually been given to her. They also submitted that, even assuming that the cell in which she had been detained had measured more than 20 sq. m as submitted by the Government, its size could not be considered sufficient for a detainee such as her suffering from diabetes. In particular, she had not had enough space for physical activity despite the fact that one of the treatments for diabetes was taking exercise. 136. As regards the second applicant, the applicants submitted that his state of health had been incompatible with his detention. In particular, they noted that, although he had suffered from grade 3 chronic hypertension, which was an illness precluding detention in prison, he had been unlawfully detained. They further submitted that the Government had failed to submit any medical documents proving that the second applicant had been provided with adequate medical treatment in detention and had contented themselves with noting that he was “under constant medical supervision ” and that his state of health “was assessed as satisfactory”. They had also failed to submit any information as to whether his detention environment had been adapted to his state of health. 2. The Court ’ s assessment (a) General principles 137. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s conduct (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. Assessment of this minimum level depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers, cited above, § 74). 138. The State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła, cited above, § 94, and Popov, cited above, § 208 ). In exceptional cases, where a detainee ’ s state of health is absolutely incompatible with his or her detention, Article 3 may require the release of that person under certain conditions (see Rozhkov v. Russia, no. 64140/00, § 104, 19 July 2007). However, Article 3 cannot be construed as laying down a general obligation to release detainees on health grounds. It rather imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty by, among other things, providing them with the requisite medical assistance (see Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005, and Khudobin v. Russia, no. 59696/00, § 93, ECHR 2006-XII (extracts)). Medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Blokhin v. Russia [GC], no. 47152/06, § 137, 2 3 March 2016). A lack of appropriate medical care and, more generally, the detention in inappropriate conditions of a person who is ill, may in principle amount to treatment contrary to Article 3 (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000VII, and Helhal v. France, no. 10401/12, § 48, 19 February 2015 ). 139. In cases in which there are conflicting accounts of events, the Court is inevitably confronted, when establishing the facts, with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is to rule not on criminal guilt or civil liability but on Contracting States ’ responsibility under the Convention. The specific nature of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention ‑ conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by the free evaluation of all the evidence, including such inferences as may flow from the facts and the parties ’ submissions. In accordance with its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specific nature of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and the cases cited therein). 140. Furthermore, it should be pointed out that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events at issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries, damage and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Oleg Nikitin v. Russia, no. 36410/02, § 45, 9 October 2008). In the absence of such an explanation the Court can draw inferences which may be unfavourable for the respondent Government (see, for instance, Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002, and Buntov v. Russia, no. 27026/10, § 161, 5 June 2012). (b) Application of these principles to the present case 141. The Court observes at the outset that the first applicant was detained from 31 July 2014 to 9 December 2015 and the second applicant was detained from 5 August 2014 to 12 November 2015. The medical evidence in the case file confirmed – and it was not disputed by the parties – that, when detained, the applicants had several serious medical problems. In particular, the first applicant suffered from chronic hepatitis C, type 2 diabetes, gallstones, a single cyst in the left kidney ( measuring 0. 91 cm) and pseudophakia (replacement of the natural lenses of the eyes with intraocular lenses). The second applicant suffered from grade 3 chronic hypertension and hypertensive crisis with an increased risk of cardiovascular complications. However, contrary to the applicants ’ allegations, it does not appear from the medical evidence in the case file that the second applicant suffered from a type of grade 3 chronic hypertension leading to one of the three situations indicated in the List of Serious Illnesses Precluding the Detention of Prisoners (see paragraph 95 above). The Court thus notes that, although nothing suggests that these diseases were in principle incompatible with detention, it is clear that they required appropriate medical care on a regular, systematic and comprehensive basis. 142. In these circumstances, as in most cases concerning the detention of persons who are ill, the Court shall examine whether or not the applicants in the present case received adequate medical assistance in detention. The Court reiterates in this regard that the “adequacy” of medical assistance remains the most difficult element to determine. The mere fact that a detainee was seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007, and Jeladze v. Georgia, no. 1871/08, § 42, 18 December 2012 ). The authorities must also ensure that diagnosis and care are prompt and accurate (see Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011) and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee ’ s health problems or preventing their aggravation (see Poghosyan v. Georgia, no. 9870/07, § 59, 24 February 2009, and Visloguzov v. Ukraine, no. 32362/02, § 69, 20 May 2010). The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Hummatov, § 116, and Jeladze, § 42, both cited above ). 143. The Court observes that the applicants were immediately examined by a doctor and underwent various medical tests upon their admission to the detention facilities and that their diagnoses were prompt and accurate. However, it notes that, although the domestic authorities were aware of the applicants ’ poor health from the very beginning of their detention, it does not appear from the case file that they were provided with adequate medical treatment in detention. 144. In this connection, the Court firstly observes that during the first few months of her detention, from August to November 2014, the first applicant was examined only once on 19 August 2014 by a specialist endocrinologist, who advised her to continue her previous treatment against diabetes without making any further recommendations (see paragraph 51 above). In particular, although she suffered from chronic hepatitis C, she was not examined by a virologist. It appears that during that period the main medical assistance provided to her by the detention facility medical unit was the transfer of the medication brought in by her friends and occasional examinations with the prison doctor when she complained about her state of health (see paragraph 62 above). 145. As to the adequacy of the first applicant ’ s subsequent medical examinations by C.W. and the other doctors, it is clear from the documents in the case file that from 29 December 2014 she was regularly examined by C.W. and underwent various medical tests. However, the Court cannot consider on the basis of this fact alone that her medical treatment was adequate. In this connection, the Court firstly refers to its above-mentioned findings concerning the Government ’ s failure to comply with the interim measure indicated by the Court on 30 September 2014 (see paragraphs 11 3 ‑ 1 20 above). Moreover, when communicating this case, the Court also asked the Government to provide full information on the medical treatment received by the applicants in respect of all their health problems. However, neither the Court nor the applicants were provided with the medical prescriptions or recommendations made by C.W. or the other doctors following these medical examinations and the Government contented themselves with submitting an undated note signed by C.W., according to which the first applicant ’ s medical examinations were conducted in compliance with international standards. No explanation was given by the Government for this failure. The Court also notes that these findings are also relevant to the second applicant ’ s case. In fact, although the Government argued that the second applicant had been provided with adequate medical treatment throughout his detention, neither the Court nor the applicants were provided with any medical prescriptions or recommendations concerning his medical treatment in detention. 146. The Court considers that this failure on the part of the Government to provide the Court with full information on the medical treatment received by the applicants in respect of all their health problems deprived it of the ability to examine whether the treatment prescribed to the applicants in the present case was comprehensive therapeutic strategy aimed at adequately treating their health problems. It can therefore draw inferences from the Government ’ s conduct and finds that the applicants were not provided with adequate medical treatment in detention. In this connection, the Court also considers it necessary to reiterate that the fact that the applicants were left without the relevant information in respect of their illnesses, and thus were kept in the dark about their state of health and deprived of any control over it, must have caused them perpetual anguish and fear (see Testa v. Croatia, no. 20877/04, § 52, 12 July 2007). 147. Furthermore, the Court cannot overlook the fact that the Government also failed to show that the necessary conditions were created for any medical treatment prescribed to the applicants to actually be followed through, except for the fact that the first applicant was provided with a blood glucose meter in the detention facility. In particular, although it was clear in view of the nature of the applicants ’ illnesses that they should follow a diet, the Government failed to specify what kind of food the applicants had been provided in detention. In general, there is no indication that the applicants ’ detention environment was adapted to their state of health. 148. As regards the Government ’ s argument relating to the first applicant ’ s “ bad faith ”, the Court notes that she did indeed refuse to be seen by the doctors on several occasions. However, it does not attach significant importance to that fact, taking into account that by that time more three months had elapsed of not being provided with adequate medical assistance in detention and that her refusal was a protest against this lack of medical assistance (see paragraph 144 above). Moreover, there was no indication that when she was examined by C.W. and the other specialists or underwent comprehensive medical examinations she refused to co-operate with the doctors. Accordingly, the Court cannot conclude that her refusal to accept medical treatment in such conditions could be interpreted as “ bad faith ” (see Holomiov v. Moldova, no. 30649/05, § 119, 7 November 2006). 149. As to the Government ’ s argument that there was no deterioration in the applicants ’ health in detention, the Court observes that this argument is contradicted by the very fact that the applicants were transferred to the medical department of the Prison Service at the request of the doctors (see paragraph 85 above). Moreover, the second applicant was released from detention precisely on health grounds at the request of the medical department of the Prison Service. The Government also did not dispute the fact that the first applicant lost a considerable amount of weight during her detention. In any event, the Court points out that it is not necessary to show that a failure to provide requisite medical assistance led to a medical emergency or otherwise caused severe or prolonged pain to find that a detainee was subjected to treatment incompatible with the guarantees of Article 3. The fact that a detainee needed and requested such assistance but it was unavailable to him may, in certain circumstances, suffice to conclude that such treatment was degrading within the meaning of that Article (see Davtyan v. Armenia, no. 29736/06, § 88, 31 March 2015). 150. The Court thus finds that the applicants did not receive adequate medical treatment for their illnesses while in detention (see, a contrario, Tymoshenko v. Ukraine, no. 49872/11, §§ 214-219, 30 April 2013). It believes that, as a result of this lack of adequate medical treatment, they were exposed to prolonged mental and physical suffering diminishing their human dignity. The authorities ’ failure to provide them with the medical care they needed amounts to inhuman and degrading treatment within the meaning of Article 3 of the Convention. 151. There has, accordingly, been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION CONCERNING THE FIRST APPLICANT ’ S ILL-TREATMENT IN PRISON BY A PRISON GUARD AND HER CELLMATE 152. The first applicant complained that she had been beaten by a prison guard on 23 September 2014 and subjected to verbal and physical violence by a repeat offender placed in her cell, and that the domestic authorities had not carried out an effective investigation in this respect. Article 3 of the Convention provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 153. The Government submitted that the first applicant had failed to exhaust domestic remedies in respect of her ill-treatment allegation. In particular, they pointed out that the Sabunchu District Prosecutor ’ s Office had launched a criminal inquiry into the first applicant ’ s alleged ill ‑ treatment in prison and that on 22 October 2014 the investigator in charge of the case had refused to institute criminal proceedings for lack of evidence. However, the first applicant had never challenged this decision before the domestic courts. 154. The first applicant disagreed with the Government ’ s submissions and maintained her complaint. 155. The Court observes that in the present case, following the first applicant ’ s complaints to the domestic authorities and the publication in the media of information about her alleged ill-treatment in prison, the prosecution authorities launched a criminal inquiry. However, by a decision of 22 October 2014 the Sabunchu District Prosecutor ’ s Office refused to institute criminal proceedings for lack of evidence to support the allegations. As with any decision by the prosecution authorities concerning a refusal to institute or to discontinue criminal proceedings, this decision was amenable to appeal before the domestic courts (see paragraph 93 above), however the first applicant did not appeal against this decision (see Rzakhanov v. Azerbaijan, no. 4242/07, § 82-84, 4 July 2013 ). 156. The first applicant did not state whether there were special circumstances in the present case which would dispense her from having to challenge the investigator ’ s refusal to institute criminal proceedings. The Court reiterates that mere doubts about the effectiveness of a remedy are not sufficient to dispense with the requirement to make normal use of the available avenues for redress (see Kunqurova v. Azerbaijan (dec.), no. 5117/03, 3 June 2005). 157. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 158. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 159. The applicants claimed 2 0,000 euros (EUR) each in compensation for non-pecuniary damage. 160. The Government submitted that the amount claimed by the applicant was unsubstantiated and excessive. They further submitted that EUR 10 ,000 would constitute reasonable compensation for the non ‑ pecuniary damage allegedly sustained by the applicants. 161. The Court considers that the applicants have suffered non ‑ pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant the sum of EUR 13,000 under this head, plus any tax that may be chargeable on this amount. B. Costs and expenses 162. The applicants claimed EUR 3 ,000 jointly for costs and expenses incurred before the Court. They also claimed a further EUR 1, 902 for translation costs and 100 Azerbaijani manats for postage costs. In support of their claim, they submitted a contract for legal services rendered in the proceedings before the Court, a contract concluded with a translator and eight invoices for postage costs. They also supplied two documents detailing the specific legal and translation services provided by their representative and the translator. 163. The Government considered that the amount claimed for costs and expenses incurred before the Court was excessive. In particular, they submitted that the amount claimed for translation costs were not necessarily incurred and asked the Court to apply a strict approach in respect of the applicants ’ claims. 164. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4, 0 00 covering costs under all heads. C. Default interest 165. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In this case the Court held that there had been a violation of Article 34 (right of individual petition) and a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It found in particular that, despite monthly information reports having been provided about the couple’s health and medical examinations following the issuing of the interim measure, the Azerbaijani Government had failed to submit medical evidence – such as medical prescriptions or doctors’ recommendations – to back up their claim that the couple’s health had been stable and had not required a transfer to a medical facility. The very purpose of the interim measure granted by the Court, namely to prevent the couple’s exposure to inhuman and degrading suffering in view of their poor health and to ensure that they received adequate medical treatment in prison, had thus been impaired. Moreover, drawing inferences from the Government’s failure to provide full information on the medical treatment provided to the couple, the Court concluded that they had not been provided with adequate medical treatment in detention. As a result of that inadequate medical treatment, the couple had been exposed to prolonged mental and physical suffering, amounting to inhuman and degrading treatment. |
1,078 | Access to work | PROCEEDINGS BEFORE THE COMMISSION 28. Mr. Kosiek ’ s application (no. 9704/82) was lodged with the Commission on 20 February 1982. He claimed that his dismissal was contrary to Article 10 (art. 10) of the Convention. The Commission declared the application admissible on 16 December 1982. In its report of 11 May 1984 (Article 31) (art. 31), it found, by ten votes to seven, that the Convention had not been violated. The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to the present judgment. FINAL SUBMISSIONS BY THOSE APPEARING BEFORE THE COURT 29. In their memorial and at the hearing on 22 October 1985, the Government requested the Court to find that: "(i) the Court cannot deal with the merits of the case, on the ground that the application was incompatible with the provisions of the Convention; alternatively (ii) the Federal Republic of Germany did not violate the European Convention for the Protection of Human Rights and Fundamental Freedoms." 30. The Delegate of the Commission, at the close of the hearing, asked the Court to rule on the following issues: "Was there in this case an interference with the applicant ’ s rights under Article 10 para. 1 (art. 10-1) of the Convention and, if so, was such interference justified?" AS TO THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 31. The Government considered Mr. Kosiek ’ s application incompatible with the provisions of the Convention. They submitted that he was claiming a right that was not secured in the Convention. In their view, the present proceedings concerned issues of access to the civil service - in this case a teaching post - and not the right to freedom of expression relied on by the applicant. At the hearing, the Government stated that they could have submitted their arguments in the form of an objection to jurisdiction, as they had done before the Commission, but that because of "the apparent complexity of the case" they were willing for the problem to be looked at in a wider context, including matters going to the merits. They submitted that Article 10 (art. 10) was inapplicable in the instant case. Mr. Kosiek contended that the admissibility of his application had to be determined on the basis of his complaints, and before the Convention institutions he had never claimed any right of access to the civil service; he was complaining solely of the damage he had suffered on account of having disseminated his opinions in books. The Delegate of the Commission considered the Government ’ s argument to be ambiguous: while submitting that the application was incompatible with the provisions of the Convention, they in fact recognised that the issue to be decided in the proceedings before the Court was whether Article 10 (art. 10) applied or not. The issue of incompatibility as such had been determined by the Commission in its decision on admissibility, while the question of the applicability of Article 10 (art. 10) fell to be dealt with on the merits of the case. 32. Mr. Kosiek complained of dismissal from a lectureship - to which he had been appointed in 1972 with the status of probationary civil servant - on account of his political activities for the NPD and of the content of the two books he had written (see paragraphs 13 and 17-24 above); he claimed to be the victim of a breach of Article 10 (art. 10) of the Convention. Such a complaint does not fall "clearly outside the provisions of the Convention" (see the judgment of 9 February 1967 in the "Belgian Linguistic" case, Series A no. 5, p. 18). It relates to the interpretation and application of the Convention (Article 45) (art. 45): in order to decide the case, the Court must inquire whether the disputed dismissal amounted to an "interference" with the exercise of the applicant ’ s freedom of expression as protected by Article 10 (art. 10). For the Court, this is a question going to the merits, which it cannot try merely as a preliminary issue (see, mutatis mutandis, the aforementioned judgment of 9 February 1967, pp. 18-19; the Airey judgment of 9 October 1979, Series A no. 32, p. 10, para. 18; and the Barthold judgment of 25 March 1985, Series A no. 90, p. 20, para. 41). II. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) 33. Mr. Kosiek claimed that his dismissal contravened Article 10 (art. 10) of the Convention, which provides: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." The Government contended that this provision was not material in the circumstances; in their submission, the present case concerned the right - not secured in the Convention - of access to a post in the civil service. This contention did not find favour with the Commission. 34. The Universal Declaration of Human Rights of 10 December 1948 and the International Covenant on Civil and Political Rights of 16 December 1966 provide, respectively, that "everyone has the right of equal access to public service in his country" (Article 21 para. 2) and that "every citizen shall have the right and the opportunity ... to have access, on general terms of equality, to public service in his country" (Article 25). In contrast, neither the European Convention nor any of its Protocols sets forth any such right. Moreover, as the Government rightly pointed out, the signatory States deliberately did not include such a right: the drafting history of Protocols Nos. 4 and 7 (P4, P7) shows this unequivocally. In particular, the initial versions of Protocol No. 7 (P7) contained a provision similar to Article 21 para. 2 of the Universal Declaration and Article 25 of the International Covenant; this clause was subsequently deleted. This is not therefore a chance omission from the European instruments; as the Preamble to the Convention states, they are designed to ensure the collective enforcement of "certain" of the rights stated in the Universal Declaration. 35. While this background makes it clear that the Contracting States did not want to commit themselves to the recognition in the Convention or its Protocols of a right of recruitment to the civil service, it does not follow that in other respects civil servants fall outside the scope of the Convention (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, pp. 31-32, para. 60). In Articles 1 and 14 (art. 1, art. 14), the Convention stipulates that "everyone within <the> jurisdiction" of the Contracting States must enjoy the rights and freedoms in Section I "without discrimination on any ground" (see, mutatis mutandis, the Engel and Others judgment of 8 June 1976, Series A no. 22, p. 23, para. 54). And Article 11 para. 2 (art. 11-2) in fine, which allows States to impose special restrictions on the exercise of the freedoms of assembly and association by "members of the armed forces, of the police or of the administration of the State", confirms that as a general rule the guarantees in the Convention extend to civil servants (see, mutatis mutandis, the Swedish Engine Drivers ’ Union judgment of 6 February 1976, Series A no. 20, p. 14, para. 37; the Schmidt and Dahlström judgment of the same date, Series A no. 21, p. 15, para. 33; and the Engel and Others judgment, loc. cit.). 36. The status of probationary civil servant that Mr. Kosiek had acquired through his appointment as a lecturer accordingly did not deprive him of the protection afforded by Article 10 (art. 10). This provision is certainly a material one in the present case, but in order to determine whether it was infringed it must first be ascertained whether the disputed measure amounted to an interference with the exercise of freedom of expression - in the form, for example, of a "formality, condition, restriction or penalty" - or whether the measure lay within the sphere of the right of access to the civil service, a right that is not secured in the Convention. In order to answer this question, the scope of the measure must be determined by putting it in the context of the facts of the case and of the relevant legislation. 37. The Ministry of Education and Culture gave as its reason for dismissing Mr. Kosiek his activities on behalf of the NPD (see paragraphs 17-19 and 21-24 above); during the court proceedings, the Ministry also relied on the two books that the applicant had published (see paragraphs 21-24 above). Its decision was therefore based on the political stances the applicant had adopted. 38. At the time his employer recommended to the Ministry that he should be given tenure, Mr. Kosiek had completed approximately one year of the probationary period he had to serve before he could be given a permanent post (see paragraph 16 above). The Ministry, however, considered that he had not proved himself, because he did not fulfil the condition - as required under sections 6 and 8 of the Land Civil Servants Act (see paragraphs 15 and 16 above) - that he would consistently uphold the free democratic system within the meaning of the Basic Law. This is one of the personal qualifications required of anyone seeking a post as a civil servant - whether temporary or established - in the Federal Republic of Germany. This requirement applies to recruitment to the civil service, a matter that was deliberately omitted from the Convention, and it cannot in itself be considered incompatible with the Convention. The Minister originally considered that the requirement had been fulfilled, since he had appointed the applicant as a lecturer with the status of probationary civil servant (see paragraph 15 above). After a fresh examination of Mr. Kosiek ’ s political activities and of his publications, however, the Ministry came to the conclusion that Mr. Kosiek - who, as "a prominent NPD official", "had approved of NPD aims which were inimical to the Constitution" (see paragraph 17 above) - did not meet one of the conditions of eligibility laid down in the Act for the post in question, as a result of which it decided not to give him tenure and so dismissed him from his post as a probationary civil servant (sections 38(2), 6 and 8 of the Land Civil Servants Act; see paragraphs 17-18 above); the domestic courts before which proceedings were brought adopted essentially the same approach, except for the Stuttgart Administrative Court (see paragraphs 21, 23, 24 and 26 above). It is not for the European Court to review the correctness of their findings. 39. It follows from the foregoing that access to the civil service lies at the heart of the issue submitted to the Court. In refusing Mr. Kosiek such access - belated though the decision was -, the responsible Ministry of the Land took account of his opinions and activities merely in order to determine whether he had proved himself during his probationary period and whether he possessed one of the necessary personal qualifications for the post in question. That being so, there has been no interference with the exercise of the right protected under paragraph 1 of Article 10 (art. 10-1). | The European Court of Human Rights held that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights. It found that, in refusing the applicant’s access to the civil service, the responsible Ministry of the Land took account of his opinions and activities merely in order to determine whether he had proved himself during his probationary period and whether he possessed one of the necessary personal qualifications for the post in question. |
932 | Concurrent judicial functions in the same case | II. RELEVANT DOMESTIC LAW AND PRACTICE 17. The Court has been referred to one recent official document relating to the Constitution of Guernsey generally. It is the States of Guernsey Administrative and Accounting Guidelines, issued in 1991 as a manual of reference and best practice for the information and guidance of civil servants. It has forewords by the then Bailiff and President of the States, Sir Charles Frossard, and by the States Supervisor, Mr F.N. Le Cheminant. The section dealing with the Constitution and law of Guernsey is taken from a pamphlet by a former Bailiff, and the part dealing specifically with the position of the Bailiff reads as follows: “The Bailiff is the Island’s chief citizen and representative. The Bailiff is appointed by the Sovereign by Letters Patent under the Great Seal of the Realm and holds office during Her Majesty’s Pleasure subject to a retiring age of seventy years. He is President of the States of Election, President of the States of Deliberation, President of the Royal Court, President of the Court of Appeal and head of the Administration. The Bailiff, as President of the States of Deliberation, is entitled to speak on any matter and has no original vote but he has a casting vote if the Members are equally divided. In general, the Bailiff uses his voice to ensure a further investigation of questions on which the States are in doubt. He places measures before the States at the request of the States Committees but he can also on his own initiative place any matter before the assembly. He is, with the Lieutenant-Governor, a channel of communication between the Privy Council and the Secretary of State for the Home Department on the one hand and on the other, the Island authorities; and in a number of questions, as the head of the Administration of the Island, he would be expected to guide the Island authorities. He has been relieved of some of his administrative responsibilities by the appointment of the States Advisory and Finance Committee which is in the nature of a co-ordinating committee with advisory powers but the Bailiff may, in his own discretion, lay before the States any matter which he has previously referred to the Committee providing that he gives the Committee an opportunity to acquaint the States with its views. While the Bailiff is responsible for arranging the business to come before the States, he is not in a position to refuse to place before the States any question of business if so requested by Members or Committees of the States. The assembly looks to the Bailiff for advice on matters affecting the Constitution of the Island. In the course of insular legislation or in discussions arising from communications from the Privy Council or the Home Department, it is the duty of the Bailiff to represent the views of the Island in constitutional matters. In the event of differences between the Crown and the States it is the historical duty of the Bailiff to represent the views of the people of the Island.” 18. The Bailiff is the senior judge of the Royal Court. In the modern era, he has usually occupied the offices of Her Majesty’s Comptroller, Her Majesty’s Procureur (Solicitor-General and Attorney-General respectively) and, since 1970, Deputy Bailiff, before finally becoming Bailiff. In his judicial capacity, the Bailiff is the professional judge (with the lay Jurats) in the Royal Court, and is ex officio President of the Guernsey Court of Appeal. In his non-judicial capacity, the Bailiff is President of the States of Election, of the States of Deliberation, of four States committees (the Appointments Board, the Emergency Council, the Legislation Committee and the Rules of Procedure Committee), and he plays a role in communications between the island authorities and the government of the United Kingdom and the Privy Council. Where the Bailiff presides in his non-judicial capacity, he has a casting, but not an original, vote. 19. The States of Election elects people to fill the vacancies which occur amongst the twelve Jurats. Jurats sit as lay members of the Royal Court. It is their function to determine the issues of fact referred to them, and to decide whether or not to allow an appeal. They also sit on certain of the States committees, either because a committee mandate requires the election of a Jurat or by reason of abilities or interests personal to them. Jurats are not, however, eligible to sit on the States Committee for Home Affairs, the Gambling Control Committee or any States committee which administers legislation the provisions of which include a right of appeal to the Royal Court against a decision of that committee. 20. The States of Deliberation exercises its legislative power in Guernsey in the form of Laws and Ordinances. In practice, a “Billet d’Etat” is laid before the States, generally by one or other of the States committees. Having passed through the States of Deliberation, Projets de Loi (draft laws) are scrutinised by the Home Office and other relevant departments of the United Kingdom government before being submitted to the Privy Council in London for royal assent. Ordinances do not need royal assent and are made under the States of Deliberation’s limited common-law powers, or under powers delegated to the States by Guernsey laws or Acts of the United Kingdom parliament applicable to Guernsey. 21. The States of Deliberation is not divided on party political lines; members of the States are elected as individuals, and vote in all matters according to their consciences. All members are of equal importance, and there are no time-limits on the length of speeches or debates generally. The States is scheduled to meet twelve times each calendar year. Sittings usually last one or two days. 22. The States committees conduct the government of Guernsey. There are some fifty States committees, to which specific administrative tasks are given by statute or delegated by the States of Deliberation. Each committee is directly accountable to the States of Deliberation. 23. None of the States committees has legal supremacy over the others, although the Advisory and Finance Committee is the most important. It oversees Treasury matters and examines all proposals and reports which are to be placed before the States of Deliberation. The committees, each of which has a Chief Officer or Chief Executive, are supported by a professional civil service of some 1,800 staff. 24. The Appointments Board, one of the States committees, appoints officials to fill certain offices in the States’ service when those offices become vacant. With limited exceptions, it appoints at the level of Senior Officer Grade 8 or above. The offices include the States Supervisor and other senior civil servants such as senior medical personnel, the Prison Governor and the Chief Officer of Police. It has never appointed a Chief Executive of the IDC. The Appointments Board met twenty-four times in the ten years prior to 31 December 1998. 25. The Emergency Council has the power to declare a state of emergency, to make emergency regulations where the population or a substantial portion of it risks being deprived of the essentials of life, and to make other essential arrangements in the case of hostile attack by a foreign power. It has met three times in the last ten years. On none of those occasions was a state of emergency declared. 26. The Legislation Committee, which meets about once a month, reviews and revises the Projets de Loi, reviews and drafts Ordinances and, in certain cases, orders that an Ordinance shall come into force pending consideration by the States of Deliberation. The latter function has been used on sixteen occasions in the last ten years. 27. The Rules of Procedure Committee considers the Rules of Procedure in relation to assemblies of the States of Deliberation, receives representations from the States and makes representations to the States for amendments to the Rules. It has met twenty-five times in the last fifteen years. 28. The Bailiff’s role in communications between the island authorities and the government of the United Kingdom and Privy Council arises from his historical function of representing the views of the islanders to the Crown. The Bailiff represents a States committee’s views outside the island when specifically requested to do so, and in accordance with a clear mandate. Representations are generally on behalf of the smaller committees. Examples of this function are the Bailiff’s involvement in negotiating the level of fees payable in respect of Guernsey students attending higher education institutions in the United Kingdom, and in requesting the government to ensure that Heathrow Airport should have slots for aircraft from regional airports such as Guernsey. 29. The States Supervisor, the Chief Officer of the Advisory and Finance Committee, is the committee’s senior adviser on policy, and is also head of the Guernsey civil service. He liaises with other senior civil servants in relation to all proposals for legislation and other major administrative items submitted by the various committees to the States of Deliberation and comments on them for the benefit of the Advisory and Finance Committee’s deliberations on them. He also gives guidance to the Chief Officers of other committees and attends meetings of those committees where appropriate. 30. Section 14(1)(a) of the Island Development (Guernsey) Law 1966 provides: “A person shall not, without the permission in writing in that behalf of the Committee, carry out development of any land.” Section 17(a) provides: “In exercising its powers under the provisions of the last preceding section the Committee shall take into account the Strategic and Corporate Plan when approved by the States and any relevant Detailed Development Plans when so approved.” 31. In the case of Bordeaux Vineries Ltd v. States Board of Administration (4 August 1993), a challenge was made to the participation of the Bailiff as a judge in the Royal Court in an action against the States Board of Administration, one of the major States committees. The Court of Appeal noted that the then Bailiff, at first instance, had held: “Insofar as the constitutional position is concerned ... my first duty is to the Crown in all matters, and I do not espouse causes of the States. ... The point has been raised as to my casting vote ... the vote is to be cast constitutionally. The way I defined that was to vote against any proposition before the States and only if that vote impinged on my conscience would I contemplate any other course.” In connection with the existence of an appeal to it, the Court of Appeal noted: “... the decision upon a submission that the Bailiff ... is disqualified by interest from hearing any matter should in the first place be made by the Bailiff ... From that decision an appeal lies to this Court.” As to the participation of the Bailiff, the Court of Appeal found that: “... the Bailiff is invested by law with duties in the Royal Court and in the States. The consequence of this dual function is that he has on occasion to take part in the exercise by the court of jurisdiction over the States. I do not think that on these occasions his responsibility in the States disqualifies him from discharging his responsibility in this Court. He can properly discharge both responsibilities because although he is a member of the States his special position there means he is not responsible for the decisions of the States or the acts of its agencies ...” PROCEEDINGS BEFORE THE COMMISSION 32. Mr McGonnell applied to the Commission on 29 June 1995. 33. The Commission declared the application (no. 28488/95) partly admissible on 22 January 1998. In its report of 20 October 1998 (former Article 31 of the Convention) [1], it expressed, by twenty-five votes to five, the opinion that there had been a violation of Article 6 § 1 of the Convention. FINAL SUBMISSIONS TO THE COURT by the government 34. The Government’s principal written submission was that the application should be declared inadmissible pursuant to Article 35 of the Convention. In the alternative, they submitted that there was no violation of Article 6 § 1 of the Convention. 35. In their oral submissions, the Government contended that the complaint under Article 6 did not give rise to a violation of the Convention. In their final observations, they maintained that an appeal was available in respect of the constitutional position of the Bailiff, and was not taken. THE LAW I. alleged violation of article 6 § 1 of the convention 36. The applicant claimed that he did not have the benefit of the guarantees of Article 6 § 1 of the Convention at the hearing of his case before the Royal Court of Guernsey on 6 June 1995. The relevant part of Article 6 provides: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” 37. The Government contested the claim. The Commission upheld it. A. The Government’s preliminary objection Alleged non-exhaustion of domestic remedies 38. The Government contended that the complaint concerning the alleged lack of independence and impartiality of the Royal Court in the applicant’s case should be declared inadmissible for failure to exhaust domestic remedies, pursuant to Article 35 of the Convention, which states: “1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” In the Government’s submission, it would have been open to the applicant to appeal to the Guernsey Court of Appeal in respect of any alleged lack of independence and impartiality on the part of the Royal Court. They pointed to the case of Bordeaux Vineries Ltd v. States Board of Administration (see paragraph 31 above) in which the Court of Appeal found that an appeal lay to it against a decision by the Bailiff on whether he was disqualified by interest from hearing any matter. They noted that the jurisdiction of the European Court to declare an application inadmissible for failure to exhaust domestic remedies, even when such arguments were rejected by the Commission, was not in doubt. They claimed that there was no reason why the exercise of the jurisdiction should depend on the Commission having given detailed consideration to the point. 39. The applicant contended that the Government were estopped from raising an objection of non-exhaustion, among other reasons because they had stated before the Commission’s admissibility decision that “the Government concedes that it was not reasonably practicable for the applicant to have addressed any of his complaints to another authority”. He considered that in any event no domestic remedy had been available to him, as the Bordeaux Vineries case had decided that the Bailiff’s functions as President of the States did not preclude him from sitting as a judge in actions against the States. 40. The Court notes that the Government’s submissions were not raised before the Commission. The Government are therefore estopped from relying on them (see, among many other authorities, the Vasilescu v. Romania judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, p. 1074, § 34). B. Applicability of Article 6 41. The parties agreed that Article 6 § 1 of the Convention was applicable to the proceedings in the present case, and the Court so finds. C. Waiver 42. The Government claimed that where a legally represented applicant had failed to raise an objection to the tribunal when it was open to him to do so, he must – even if the application was admissible – be deemed to have waived his right to object to the independence and impartiality of that tribunal. 43. The applicant submitted that the Government’s submissions were a mere repetition of their submissions as to non-exhaustion of domestic remedies, and that they should be dismissed for the same reason. He considered that the Government had not, in any event, established a waiver. 44. The Court recalls that in the context of a complaint concerning the absence of a public hearing in civil proceedings, it has held that “a waiver must be made in an unequivocal manner and must not run counter to any important public interest” (see the Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171-A, p. 20, § 66). No express waiver was made in the present case. The question, as in the Håkansson and Sturesson case, is whether there was a tacit one. The answer to the question whether the applicant ought to have taken up his complaint with either the Bailiff at the hearing on 6 June 1995, or on appeal with the Court of Appeal, depends on what was reasonable in the circumstances of the case. In assessing that reasonableness, the Court notes first that in the Bordeaux Vineries case referred to by the Government, the Court of Appeal found that there was no structural conflict between the Bailiff’s duties in the Royal Court and in the States of Deliberation. Secondly, the Court notes that the argument of waiver was made for the first time before the Court: it was not raised before the Commission either prior or subsequent to the Commission’s decision on admissibility. 45. Given the clear statement of the Court of Appeal in the Bordeaux Vineries case that the Bailiff’s constitutional functions in connection with the States do not impinge on his judicial independence, and the fact that a domestic challenge was not only not pursued by the applicant in the domestic proceedings, but was not raised by the Government until a late stage of the Convention proceedings, the Court finds that the applicant’s failure to challenge the Bailiff in Guernsey cannot be said to have been unreasonable, and cannot amount to a tacit waiver of his right to an independent and impartial tribunal. D. Compliance with Article 6 § 1 46. The applicant pointed to the non-judicial functions of the Bailiff, contending that they gave rise to such close connections between the Bailiff as a judicial officer and the legislative and executive functions of government that the Bailiff no longer had the independence and impartiality required by Article 6. As specific examples, the applicant pointed to three matters which were not referred to before the Commission. They are the facts that the Bailiff is invariably appointed from the office of the Attorney-General, that he acts as Lieutenant-Governor of the island when that office is vacant, and that the Bailiff who sat in the present case had also presided over the States of Deliberation when DDP6, the very act which was at issue in the applicant’s later case, was adopted. He also claimed that the Royal Court gave inadequate reasons for its judgment. 47. The Government recalled that the Convention does not require compliance with any particular doctrine of separation of powers. They maintained that whilst the Bailiff has a number of positions on the island, they cannot give rise to any legitimate fear in a reasonably well-informed inhabitant of Guernsey of a lack of independence or impartiality because the positions do not involve any real participation in legislative or executive functions. In particular, they underlined that when the Bailiff presides over the States of Deliberation or one of the four States committees in which he is involved, his participation is not that of an active member, but rather he is an independent umpire, who ensures that the proceedings run smoothly without taking part in or expressing approval or disapproval of the matters under discussion. In connection with the reasons for the Royal Court’s judgment, the Government considered that the Bailiff’s summing-up, taken together with the decision of the Jurats, gave sufficient reasons to comply with Article 6 of the Convention. 48. The Court recalls that in its Findlay v. the United Kingdom judgment (25 February 1997, Reports 1997-I, p. 281, § 73) it found that: “in order to establish whether a tribunal can be considered as ‘independent’, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence ... As to the question of ‘impartiality’, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect ... The concepts of independence and objective impartiality are closely linked ...” 49. In the present case, too, the concepts of independence and objective impartiality are closely linked, and the Court will consider them together. 50. The Court first observes that there is no suggestion in the present case that the Bailiff was subjectively prejudiced or biased when he heard the applicant’s planning appeal in June 1995. It has not been alleged that the Bailiff’s participation as Deputy Bailiff in the adoption of DDP6 in 1990 gives rise to actual bias on his part: the applicant stated that it was not possible to ascertain whether there was actual bias because of the Bailiff’s various functions, but he did not contend that the Bailiff was subjectively biased or prejudiced. 51. The Court can agree with the Government that neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts as such. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position in Guernsey: the Court is faced solely with the question whether the Bailiff had the required “appearance” of independence, or the required “objective” impartiality. 52. In this connection, the Court notes that the Bailiff’s functions are not limited to judicial matters, but that he is also actively involved in non-judicial functions on the island. The Court does not accept the Government’s analysis that when the Bailiff acts in a non-judicial capacity he merely occupies positions rather than exercising functions: even a purely ceremonial constitutional role must be classified as a “function”. The Court must determine whether the Bailiff’s functions in his non-judicial capacity were, or were not, compatible with the requirements of Article 6 as to independence and impartiality. 53. The Court observes that the Bailiff in the present case had personal involvement with the planning matters at the heart of the applicant’s case on two occasions. The first occasion was in 1990, when, as Deputy Bailiff, he presided over the States of Deliberation at the adoption of DDP6. The second occasion was on 6 June 1995, when he presided over the Royal Court in the determination of the applicant’s planning appeal. 54. The Court recalls that in the case of Procola v. Luxembourg, four of the five members of the Conseil d’Etat had carried out both advisory and judicial functions in the same case (judgment of 28 September 1995, Series A no. 326, p. 16, § 45). 55. The participation of the Bailiff in the present case shows certain similarities with the position of the members of the Conseil d’Etat in the Procola case. First, in neither case was any doubt expressed in the domestic proceedings as to the role of the impugned organ. Secondly, and more particularly, in both cases a member, or members, of the deciding tribunal had been actively and formally involved in the preparatory stages of the regulation at issue. As the Court has noted above, the Bailiff’s non-judicial constitutional functions cannot be accepted as being merely ceremonial. With particular respect to his presiding, as Deputy Bailiff, over the States of Deliberation in 1990, the Court considers that any direct involvement in the passage of legislation, or of executive rules, is likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue. In the present case, in addition to the chairing role as such, the Deputy Bailiff could exercise a casting vote in the event of even voting and, as the Bailiff stated in the Bordeaux Vineries case, there was no obligation on him to exercise his casting vote against a proposition before the States where that vote impinged on his conscience (see paragraph 31 above). Moreover, the States of Deliberation in Guernsey was the body which passed the regulations at issue. It can thus be seen to have had a more direct involvement with them than had the advisory panel of the Conseil d’Etat with the regulations at issue in the Procola case (judgment cited above, p. 12, § 25). 56. The Court also notes that in the De Haan case, the judge who presided over the Appeals Tribunal was called upon to decide on an objection for which he himself was responsible. In that case, notwithstanding an absence of prejudice or bias on the part of the judge, the Court found that the applicant’s fears as to the judge’s participation were objectively justified (see the De Haan v. the Netherlands judgment of 26 August 1997, Reports 1997-IV, pp. 1392-93, §§ 50-51). 57. The Court thus considers that the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant’s planning appeal. The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court, and it is therefore unnecessary for the Court to look into the other aspects of the complaint. 58. It follows that there has been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 60. The applicant requested the Court to award a “just and appropriate sum in compensation”. In early correspondence he referred to the sum of 50,000 pounds sterling (GBP). The Government considered that there was no reason to award any sum in respect of pecuniary or non-pecuniary damage. 61. The Court finds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered. No specific claim for pecuniary damage has been made, and the Court finds none. B. Costs and expenses 62. The applicant has submitted bills totalling GBP 20,913.90 (exclusive of value-added tax – “VAT”). The Government have not commented on them. 63. The Court awards the applicant the sum of GBP 20,913.90, together with any VAT which may be payable. C. Default interest 64. According to the information available to the Court, the statutory rate of interest applicable in England and Wales at the date of adoption of the present judgment is 7.5% per annum. | The Court held that there had been a violation of Article 6 § 1 of the Convention in the present case. It observed in particular that there was no question in the case of actual bias on the part of the Bailiff: the case turned on whether the Bailiff had the required appearance of independence, or the required objective impartiality. In applying this test to the case, the Court noted that the Bailiff had had initial personal, direct involvement in the case in that he presided over the States of Deliberation when the relevant Development Plan was adopted. He was then the President of the Royal Court which decided the applicant’s planning appeal. The Court found that this accumulation of functions gave rise to doubts as to the impartiality of the Bailiff when sitting in the Royal Court. |
244 | (Suspected) terrorists | THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 49. The applicant complained that no reasons had been given for the judgment delivered by the special Assize Court. He relied on Article 6 § 1 of the Convention, the relevant parts of which provide: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 50. The Government contested that argument. ... B. Merits 1. The parties ’ submissions ( a) The applicant 52. The applicant stated at the outset that personal conviction, which was not the same as arbitrariness or intuition, must be based on a free assessment of the evidence. It found support in the free admissibility of evidence and not in the absence of evidence. Accordingly, if the defence adduced cogent evidence during the trial it had to be informed, if it was to understand and accept the verdict, of the main reasons why the Assize Court had found the accused to be guilty. 53. Of the sixty-three questions read out at the hearing, twenty-eight had concerned the applicant personally. The applicant added that twelve questions had related to the attack of 25 July 1995, nine to the attack of 6 October 1995 and a further nine to the attack of 17 October 1995. The applicant submitted that these twenty-eight questions had been drafted in the abstract by the president following the hearings and had not contained any factual reference or any reasoning regarding the charge of aiding and abetting. The manner in which they were drafted had left him unaware as to why the answer had been “yes” in each case despite the fact that he had denied any personal involvement in the three attacks. 54. The applicant stated in particular that certain factual elements which he disputed prevented him from understanding the reasons for his conviction. In his submission, as it had become clear at the trial that there were shortcomings in the investigation as well as inaccuracies and uncertainty as to his personal involvement, he was unable to understand the reasons for his conviction on the basis of a combined reading of the indictments and the twenty-eight questions. 55. He further submitted that the violation of Article 6 was even more evident since the verdict had not been given by a lay jury, but by a jury made up exclusively of professional judges, who were required to indicate with sufficient clarity the grounds on which their decisions were based. The professional judges making up an assize court bench had to give reasons for their decisions, just as they did in cases before the ordinary criminal courts; that obligation was unquestionably one of the requirements of a fair trial in the modern age. ( b) The Government 56. The Government referred first of all to the Court ’ s case-law concerning assize courts with a lay jury, while observing that the issue of the absence of reasons for a decision given in criminal proceedings in France by a jury of professional judges was being raised for the first time before the Court. The Constitutional Council, in its ruling of 3 September 1986 on the special composition of the assize courts in terrorism cases ( dec. no. 86-213), had found that the exception made in the formation of the assize court was limited in nature, that the difference in treatment was designed to circumvent the risk of pressure or threats to which lay jurors might be subjected, and that an assize court sitting in a special composition of professional judges satisfied the requirements of independence and impartiality. Furthermore, the accused benefited from the same information and the same safeguards as before the ordinary assize courts, including the possibility of appealing since the enactment of Law no. 2000-516 of 15 June 2000. 57. The Government emphasised that Law no. 2011-939 of 10 August 2011, which had made it compulsory, as of 1 January 2012, for assize court judgments to be accompanied by reasons, also applied to judgments of the special assize courts. 58. The Government therefore submitted that the procedural safeguards had enabled the applicant to understand the decision in his case and that the proceedings had complied with the Convention requirements. They noted in particular that the applicant had been the only defendant in the appeal proceedings, and that the indictments had been read out in full, as had the questions put at first instance, the answers to those questions and the judgment convicting him. The oral proceedings had lasted from 16 September to 13 October 2009 and the charges had been the subject of adversarial argument; the applicant had given evidence and had been able to defend his case by debating each item of evidence. The Government observed that no fewer than sixty-three questions had been put and that the affirmative answers had confirmed the three judgments committing the applicant for trial and the criminal conviction handed down at first instance. In particular, it had been open to the applicant to request that the questions be rephrased or that one or more additional questions be asked. 2. The Court ’ s assessment 59. The Court reiterates that, while the Convention does not require jurors to give reasons for their decision and Article 6 does not preclude a defendant from being tried by a lay jury even where reasons are not given for the verdict ( see Taxquet v. Belgium [GC], no. 926/05, § 89, ECHR 2010; Agnelet v. France, no. 61198/08, § 56, 10 January 2013; and Lhermitte v. Belgium [GC], no. 34238/09, § 66, ECHR 2016), in proceedings conducted before professional judges, the accused ’ s understanding of his conviction stems primarily from the reasons given in judicial decisions. In such cases the national courts must indicate with sufficient clarity the grounds on which they base their decisions (see Hadjianastassiou v. Greece, no. 12945/87, 16 December 1992, § 33, Series A no. 252, and Taxquet, cited above, § 91). Reasoned decisions also serve the purpose of demonstrating to the parties that they have been heard, thereby contributing to a more willing acceptance of the decision on their part. In addition, they oblige judges to base their reasoning on objective arguments, and also preserve the rights of the defence. However, even for professional judges the extent of the duty to give reasons varies according to the nature of the decision and must be determined in the light of the circumstances of the case ( see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303 ‑ A, and Taxquet, cited above, § 91). While courts are not obliged to give a detailed answer to every argument raised (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288), it must be clear from the decision that the essential issues of the case have been addressed ( see Boldea v. Romania, no. 19997/02, § 30, 15 February 2007 ). 60. The Court also reiterates that, in any event, for the requirements of a fair trial to be satisfied, the accused, and indeed the public, must be able to understand the verdict that has been given; this is a vital safeguard against arbitrariness. As the Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention (see Taxquet, cited above, § 90, and Lhermitte, cited above, § 67). In the judicial sphere, those principles serve to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society ( see Suominen v. Finland, no. 37801/97, § 37, 1 July 2003; Tatishvili v. Russia, no. 1509/02, § 58, ECHR 2007 ‑ I; and Taxquet, cited above). 61. Seeing that compliance with the requirements of a fair trial must be assessed on the basis of the proceedings as a whole and in the specific context of the legal system concerned, the Court ’ s task in reviewing the absence of a reasoned verdict is to determine whether, in the light of all the circumstances of the case, the proceedings afforded sufficient safeguards against arbitrariness and made it possible for the accused to understand why he was found guilty ( see Taxquet, cited above, § 93). Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced, and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based and sufficiently offsetting the fact that no reasons are given for the jury ’ s answers. Regard must also be had to any avenues of appeal open to the accused (see Papon v. France ( dec. ), no. 54210/00, ECHR 2001-XII; Taxquet, cited above, § 69; and Lhermitte, cited above, § 68). In this regard the Court must bear in mind that it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies ( see Taxquet, cited above, § 93; Lhermitte, cited above, § 69; and Simeonovi v. Bulgaria [GC], no. 21980/04, § 126, ECHR 2017). 62. The Court notes that although the present case concerns an assize court it is distinguishable from comparable cases brought before it in the past in that the court in question did not sit with a lay jury, but in a special composition made up exclusively of professional judges. Accordingly, irrespective of the terminology used, the issue of the absence of reasons does not arise in the context of the involvement of a lay jury. 63. The fact remains that no reasons were given for the Assize Court of Appeal judgment of 13 October 2009, just as was the case with judgments of the assize courts sitting with a lay jury prior to the enactment of Law no. 2011-939 of 10 August 2011 (see Agnelet, cited above; Oulahcene v. France, no. 44446/10, 10 January 2013; Fraumens v. France, no. 30010/10, 10 January 2013; Legillon v. France, no. 53406/10, 10 January 2013; Voica v. France, no. 60995/09, 10 January 2013; and Matis v. France ( dec. ), no. 43699/13, 6 October 2015), which also applied to special assize courts. 64. Consequently, while stressing that in proceedings before professional judges the domestic courts must indicate with sufficient clarity the grounds on which they base their decisions, the Court reiterates that the extent of the duty to give reasons varies according to the nature of the decision and must be determined in the light of the circumstances of the case (see paragraph 59 above). It therefore considers it relevant, in view of the specific features of these proceedings – which are broadly similar to proceedings involving a lay jury – to examine the applicant ’ s complaint in the light of the principles established in its judgment in Taxquet (cited above; see also Agnelet, Oulahcene, Fraumens, Legillon and Voica, all cited above, and Lhermitte, cited above ). 65. The Court observes at the outset that all defendants in French criminal proceedings, like the applicant, are provided with certain information and afforded certain safeguards: the indictment, or the judgment of the investigation division in the case of an appeal, is read out in full by the clerk at the trial in the assize court; the charges are read out and are then the subject of adversarial argument, each item of evidence being examined and the accused being assisted by counsel; the judges and jury withdraw to deliberate immediately after the oral proceedings have ended and the questions have been read out, without having access to the case file; accordingly, their decision can only be based on the evidence examined by the parties during the trial. Furthermore, the decisions of the assize courts are subject to review by an enlarged assize court of appeal, made up of nine judges compared with seven at first instance in the case of a special assize court (see, in particular, Agnelet, cited above, § 63). 66. With regard to the combined impact of the indictment and the questions to the Assize Court in the present case, the Court notes firstly that the applicant was not the only accused and that the case was a complex one. 67. Furthermore, the three judgments committing the applicant for trial had a limited impact since they were delivered before the oral proceedings, which formed the crucial part of the trial. The Court nevertheless notes that each of these judgments concerned a different attack and that the reasoning was particularly thorough with regard to the charges, setting out the events in a very detailed manner. Moreover, the accused had already had an opportunity during the first-instance proceedings to assess the charges against him in depth and to put forward a defence. Besides the fact that the judgments committing the applicant for trial continued to form the basis for the charges against him in the Assize Court of Appeal proceedings, the oral proceedings at first instance had afforded him a more detailed insight into the charges against him and the grounds on which he was liable to be convicted on appeal. 68. A total of sixty-three questions were asked concerning the applicant, of which twenty-six related to the events surrounding the attack of 25 July 1995, eighteen to the events surrounding the attack of 6 October 1995 and nineteen to the attack of 17 October 1995. The answer was “yes ”, by a majority, in the case of sixty-one of them ( some questions, followed by a list of victims and requiring an individual reply in each case, were also found partly “devoid of purpose”), and two questions were found to be “devoid of purpose” (see paragraph 40 above). The Court notes in particular that, besides details of the places and dates concerned in each instance and an indication of the victims according to the damage suffered (death, mutilation or permanent disability, temporary total unfitness for work of over eight days and of a maximum of eight days, destruction of or damage to property), the questions related in particular to whether or not the applicant ’ s actions had been premeditated (questions nos. 2, 8, 28 and 46), and to incitement of others to commit certain acts (questions nos. 5, 11, 20, 25, 31, 36, 43, 49, 57 and 62), the assistance lent by the applicant to the perpetrators of the attacks (questions nos. 10, 19, 24, 30, 35, 42, 48, 56 and 61) and whether the applicant had issued instructions to others to commit certain crimes (questions nos. 6, 12, 21, 26, 32, 37, 44, 50, 58 and 63). The Court considers that, owing to their number and precision, these questions formed a framework on which to base the verdict ( see, mutatis mutandis, Papon v. France (no. 2) ( dec. ), no. 54210/00, ECHR 2001 ‑ XII). It further notes that, while the applicant objected to the manner in which they were drafted (see paragraph 53 above), he did not seek either to amend them or to ask other questions (see, mutatis mutandis, Lhermitte, cited above, § 79). 69. Accordingly, in the light of the combined examination of the three judgments committing the applicant for trial, which were particularly thoroughly reasoned, the oral proceedings to which he had access both at first instance and on appeal, and the numerous and precise questions put to the Assize Court, the applicant could not claim to have been unaware of the reasons for his conviction. 70. In sum, the Court considers that in the instant case the applicant was afforded sufficient safeguards enabling him to understand why he was found guilty (compare, mutatis mutandis, Legillon, cited above, § 67; Voica, cited above, § 53; and Bodein v. France, no. 40014/10, § 42, 13 November 2014). The Court nevertheless welcomes the fact that the reforms introduced since the material time, with the enactment of Law no. 2011-939 of 10 August 2011 requiring a “statement of reasons form” to be drawn up (see Legillon, § 68; Voica, § 54; and Bodein, § 43, all cited above), also applies to special assize courts (see paragraph 63 above). 71. It follows that there has been no violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No.. 7 72. The applicant contended that he had been prosecuted and convicted twice for identical facts, in view of his final conviction by the Paris Court of Appeal on 18 December 2006. He relied on Article 4 of Protocol No. 7, which provides: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” 73. The Government contested that argument. ... B. Merits 1. The parties ’ submissions ( a) The applicant 75. The applicant maintained that it was clear from the Court ’ s case-law that the facts to be assessed should be understood to refer to the behaviour or conduct of which he had been accused before the criminal courts and subsequently before the assize courts. In his view, the criminal acts referred to in the Investigation Division ’ s judgments were encompassed in the facts on the basis of which he was finally convicted by the Paris Court of Appeal on 18 December 2006. 76. In his application and his observations in reply to those of the Government, the applicant raised arguments regarding the funding operations and telephone calls. In particular, with regard first of all to the attack of 25 July 1995, he stressed that the transfer of a sum of GBP 5,000 referred to in the judgment of 3 August 2001 was also taken into consideration in the Paris Court of Appeal judgment of 18 December 2006. In the applicant ’ s view, the transfer of the sum of GBP 6,945 referred to in the Investigation Division ’ s judgment of 3 August 2001 should be regarded as being encompassed in the facts of the judgment of 18 December 2006, which had taken into account all the material acts committed by the applicant in connection with his role in funding the preparations for the attacks. 77. As to the telephone calls of 24 July 1995 referred to in the judgment of 3 August 2001 committing the applicant for trial, but not mentioned in the judgment of 18 December 2006, the applicant noted that in the latter judgment the Paris Court of Appeal had convicted him specifically on account of his role as coordinator of the GIA ’ s external activities, finding that the existence of an information hub in London which he had allegedly managed was demonstrated by the correlation between the telephone calls and the attacks. The calls of 24 July were thus inextricably linked to the calls made by the applicant in his role as coordinator of the various attacks. 78. The same was true of the calls of 26 September and 22 October 1995 referred to by the Government. Although they were not mentioned in the judgment of 18 December 2006, the applicant maintained that they were inextricably linked to the other calls. ( b) The Government 79. In the Government ’ s submission, the applicant had not been convicted on the basis of the same facts since he had been charged with separate offences, the elements of which were different. The facts in respect of which the applicant had been sentenced to ten years ’ imprisonment by the Paris Court of Appeal on 18 December 2006 were not identical, or substantially the same, as those for which the special Assize Court of Appeal sentenced him to life imprisonment on 13 October 2009. In particular, the Paris Court of Appeal had examined the applicant ’ s involvement in the conspiracy, whereas the special Assize Court had tried him on charges of aiding and abetting the attacks of 25 July, 6 October and 17 October 1995. In the Government ’ s view, the facts were therefore different in the two sets of proceedings. In the criminal court proceedings, the applicant had been charged with membership of a terrorist group, whereas the special Assize Court had tried him for specific acts consisting of aiding and abetting the carrying-out of terrorist attacks. Moreover, each of the sentences passed was deemed to cover the concurrent offences, subject to the statutory limit applicable to each one. 80. In the alternative, if the Court were to consider that the facts should be understood to mean the behaviour or conduct with which the applicant had been charged by the criminal courts and subsequently by the assize courts, the Government submitted that these were likewise not identical or substantially the same. For instance, the judgment of 18 December 2006 had not mentioned certain facts that were taken into consideration subsequently. 2. The Court ’ s assessment ( a) General principles 81. The Court reiterates that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 82, ECHR 2009, and A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 108, ECHR 2016). 82. The guarantee enshrined in Article 4 of Protocol No. 7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. At this juncture the available material will necessarily comprise the decision by which the first “penal procedure” was concluded and the list of charges levelled against the applicant in the new proceedings. Normally, these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused. Such statements of fact are an appropriate starting-point for the Court ’ s determination of the issue whether the facts in both proceedings were identical or substantially the same. It is irrelevant which parts of the new charges are eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol No. 7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal (see Sergey Zolotukhin, cited above, § 83). 83. The Court ’ s inquiry should therefore focus on the facts set out in these statements, which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (see Sergey Zolotukhin, cited above, § 84). 84. In so doing, the Court must determine whether the new proceedings arose from facts which were substantially the same as those which had been the subject of the final conviction (see Sergey Zolotukhin, cited above, § 82; see also Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 224, 4 March 2014, and Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, § 68, 30 April 2015). In its judgment in A and B v. Norway, which concerned the conduct of mixed proceedings (that is, criminal and administrative), the Court reaffirmed this approach, noting that it represented the most significant contribution of the Sergey Zolotukhin judgment, cited above (see A and B v. Norway, cited above, § 108). ( b) Application of the above-mentioned principles to the present case 85. The Court notes at the outset that the judgment of the Paris Court of Appeal of 18 December 2006, convicting the applicant following criminal proceedings, became final on 14 March 2007 when his appeal on points of law was dismissed (see paragraph 27 above). From that point onwards, therefore, the applicant was to be considered as having already been finally convicted of an offence for the purposes of Article 4 of Protocol No. 7. 86. The proceedings coming within the jurisdiction of the assize courts, which reflected the procedural choice made by the judicial authorities and gave rise to the judgments of February, August and November 2001 committing the applicant for trial, and which resulted in the applicant ’ s conviction by the special Assize Court on 26 October 2007 and on 13 October 2009, were not discontinued. 87. The Court notes that, contrary to what the Government appeared to assert (see paragraph 79 above), it is clear from the principles set forth in Sergey Zolotukhin, cited above, that the issue to be determined is not whether the elements of the offences with which the applicant was charged in the proceedings before the criminal courts and those before the assize courts were or were not identical, but whether the facts at issue in the two sets of proceedings referred to the same conduct. Where the same conduct on the part of the same defendant and within the same time frame is at issue, the Court is required to verify whether the facts of the offence of which the applicant was initially convicted, and those of the offence for which proceedings continued, were identical or substantially the same (see Sergey Zolotukhin, cited above, § 94). 88. As regards the proceedings in the criminal courts, the Court notes that the Criminal Court took care to present the facts in detail in its judgment of 29 March 2006. After setting the case in context and assessing the evidence against the applicant (see paragraphs 19-20 above), it found that his involvement in a criminal conspiracy in connection with a terrorist enterprise was established, as the judicial investigation had shown that several terrorist groups were based in the Lyons region, in Paris and in Lille and that the applicant ’ s contacts with the various members of these GIA support networks, who had the shared goal of carrying out attacks, were sufficient to establish his conscious and deliberate participation in a conspiracy to carry out terrorist acts on French soil. In its judgment the Criminal Court set out the facts demonstrating the applicant ’ s links to eight members of these groups and found that by providing funding and issuing propaganda on behalf of the GIA, the applicant had helped to strengthen the networks spread over several European countries (see paragraphs 21-22 above). 89. The Court further notes that in its judgment of 18 December 2006 the Paris Court of Appeal gave reasons explaining its approach. It began by giving details of the telephone calls demonstrating the existence of an information hub in London which was allegedly managed by the applicant. Hence, it referred to the calls made the day after the killing of the imam S. in Paris; two days before the attack on the Saint-Michel suburban rail station; on the day of that attack and the day after the attempted attack on the Paris-Lyon high-speed railway line at Cailloux-sur-Fontaines; on 12 September 1995, a few days after the attack of 3 September on Boulevard Richard Lenoir in Paris, the attempted attack of 4 September on Place Charles Vallin in Paris and the attack of 7 September in rue Jean ‑ Claude Vivand in Villeurbanne; the day after the shooting at the Col de Maleval and the arrest of three people; five days before the attack of 6 October and two days after it; on 16 October 1995, in other words just before the attack of 17 October; and, finally, on 1 November 1995, immediately after a telephone conversation between B.B. and S.A.B. concerning preparations for an attack on the Wazemmes market in Lille, with B.B. stating that the purpose of the call was to report to the applicant on the “final preparations” for the Lille attack ( see paragraph 23 above ). The Court notes that the Paris Court of Appeal went on to list the items of factual evidence pointing to the applicant ’ s involvement as the supervisor of a structure set up to fund the GIA ’ s activities in France. It referred to the funds sent by the applicant on 16 October 1995 under a false name and received by B.B.; the payment by the applicant of GBP 5,000 and FRF 50,000; and statements from several individuals concerning services offered in return for payment, fundraising and money transfers (see paragraph 24 above). The Court of Appeal also referred to a series of facts demonstrating, firstly, that the applicant had been the main contact person in organising and carrying out the GIA ’ s activities in Europe, as was clear in particular from a telephone conversation of 2 December 1995, from the statements of a witness who was a GIA member, and from the detailed content of several documents seized in London (press statements, authorisations to conduct the jihad, documents on the management of funds, articles and handwritten notes on the activities of Islamist groups in Europe and anti-terrorist activities, notes on military weapons and the handling of explosives, and so on); secondly, that he had been the GIA ’ s main propaganda agent outside Algeria (in view of his role on the magazine Al Ansar as established by documents seized at the applicant ’ s London address, namely a note on how to make the magazine more dynamic, a letter explaining the means of distributing it, a piece of computer equipment which the applicant would have been unable to afford, letters from readers and GIA sympathisers, a large number of magazines detailing the GIA ’ s ideas and violent actions, a substantial amount of correspondence relating to Algerian and Islamic issues, some testimonies, and a list of post-office boxes in numerous countries, used by the magazine ’ s subscribers); thirdly, that he had been at the centre of the London cell which also served as a rallying point for young recruits passing through; and fourthly, that he had been a leader with a strategic role in the GIA ’ s external organisation, as demonstrated by his links to members and correspondents of other Islamist terrorist groups worldwide (see paragraph 25 above). 90. Lastly, the Court notes that the Court of Appeal cited as reasons for its judgment the decisive role knowingly played by the applicant in the external structure set up in Europe by the GIA with the aim of overthrowing the Algerian regime. This involved creating networks in Belgium and France in particular in order to provide support to the Algerian guerrillas by supplying weapons, munitions and various items of equipment, supplying jihadists and providing safe havens to fighters who were fleeing the Algerian maquis or had arrived to carry out attacks (see paragraph 26 above). 91. As regards the assize court proceedings, the Court notes that the Investigation Division of the Paris Court of Appeal, in three judgments of 13 February, 3 August and 27 November 2001, committed the applicant for trial before the Paris Assize Court on charges of aiding and abetting the crimes committed during the attacks of 25 July and 6 and 17 October 1995 (see paragraphs 28-29 above). It observes that these judgments, which in this instance concerned specific criminal conduct aimed at the achievement of precise objectives represented by each of the attacks carried out in Paris on 25 July and 6 and 17 October 1995, set out the factual evidence forming the basis for the applicant ’ s prosecution and his committal for trial before the Assize Court. In particular, the applicant was charged, in relation to these three attacks, with transmitting instructions from the GIA ordering the attacks to be carried out with explosives and relaying to the GIA leadership operational information provided by the perpetrators of the attacks, and with issuing instructions for making the explosive devices to his accomplices in Paris, while procuring for them the funds needed to manufacture the explosives and make all the logistical arrangements for preparing and carrying out these particular attacks (see paragraph 30 above). 92. The Court observes that the Investigation Division ’ s judgments listed the following specific facts in particular. The three mobile phones used by the applicant had received calls from B.B., one of the main organisers in Paris and one of the perpetrators of the attacks, on 16 and 22 October and 1 November 1995; a receipt for an exchange transaction performed on 16 October 1995 for an amount of FRF 36,800 had been discovered at B.B. ’ s home, together with a notice of transfer for FRF 38,000; the applicant ’ s fingerprints had been found on the transfer slip kept by the Western Union office in the Londis shop; the words “LYESO – FF 36,600” had been found in the credit column of B.B. ’ s accounts and the words “West Union” and “West-Union Bank” had also been entered by B.B. in a document logging the details of the 17 October attack; the applicant had possessed the details of the Western Union branch in rue du Cloître in the Notre-Dame district of Paris; an exchange receipt dated 21 July 1995, for an amount of GBP 5,000 exchanged in London at a rate of 7.5%, had been found at the applicant ’ s home, with the number of a public payphone in Corbeil-Essonnes used by one of the perpetrators of the attacks written on the back, and an entry had been made in the credit column of B.B. ’ s accounts; a sum of GBP 6,945 had been sent on 20 July 1995; and between 20 and 25 July 1995 the sum of FRF 300 had been entered as expenditure for the purchase of a “GB ticket”, demonstrating that the funds, after being exchanged in England, had been transported to Paris in the days leading up to the attack at the Saint-Michel suburban rail station. The judges also noted, as evidence against the applicant, the content of a hard disk found in a London flat to which the applicant had had keys, containing two financial reports, one relating to the activities of the GIA in Belgium and the other to a set of accounts for the period from September 1994 to 1 November 1995, the date of B.B. ’ s arrest (see paragraph 31 above). 93. The Court also notes that the Investigation Division emphasised certain factual elements specific to the different attacks. For instance, in its judgment of 13 February 2001 concerning the attack of 17 October 1995 it stressed the fact that the applicant ’ s three telephone numbers had been called repeatedly from payphones used by B.B., around the time of the different attacks and in particular on the day before the attack of 17 October 1995, in order to report to the applicant on the preparations under way. The Investigation Division also highlighted the fact that the transfer of FRF 36,800 made from London the day before the attack of 17 October 1995 was directly linked to that attack (see paragraph 32 above). In its judgment of 3 August 2001 concerning the attack of 25 July 1995, the Investigation Division stressed that a call had been made to the applicant ’ s English mobile phone two days before the attack from a public payphone in Paris close to B.B. ’ s home which had also been used to contact another GIA member in France. The day before the attack and then on the day itself, the applicant had received calls from France on his various numbers, including from a payphone close to the previous one, concerning his role as an intermediary between the perpetrators of the attacks and the person masterminding them in Algeria. Furthermore, the applicant had on 2 and 20 July 1995 sent sums of GBP 5,000 and GBP 6,945 respectively which were directly linked to the attack carried out on 25 July 1995 (see paragraph 33 above). Finally, in its judgment of 27 November 2001 concerning the attack of 6 October 1995, the Investigation Division noted that the instructions issued by the GIA concerning the campaign of attacks, which had been accompanied by advice on the manufacture of explosives, had been transmitted via the applicant, who had been required to account for the use of the sums he had provided and had also been kept informed of the progress of the attacks, and in particular of the attack of 6 October 1995 by means of a telephone call of 8 October 1995 (see paragraph 34 above). The Assize Court went on to find that he had knowingly assisted in the manufacture or possession of explosive devices and issued instructions to that effect, in the context of the attacks of 25 July and 6 and 17 October 1995, and had knowingly incited others to manufacture or possess such devices in the context of the attacks of 25 July and 17 October 1995 (see paragraph 41 above). 94. Having thus compared the judgment of 18 December 2006 in which the Paris Court of Appeal convicted the applicant and the three judgments of the Investigation Division of 13 February, 3 August and 27 November 2001 committing him for trial before the special Assize Court, the Court notes that these decisions were based on numerous and detailed facts that were distinct from each other. In particular, it considers that although the transfer of GBP 5,000 referred to by the applicant (see paragraph 76 above) was mentioned both in the Court of Appeal judgment and in the judgments of the Investigation Division, that circumstance does not amount to a decisive similarity. As to the transfer of a sum of GBP 6,945 and the telephone calls on which the applicant relied, the Court observes – as did the applicant himself – that none of these features in both the Court of Appeal judgment convicting him and any of the Investigation Division ’ s judgments committing him for trial. On this point, it is not persuaded by the applicant ’ s claims that the transfer of funds should be regarded as being encompassed in the facts of the judgment of 18 December 2006 and that the telephone calls were inextricably linked to other calls dealt with in that judgment (see paragraphs 76 to 78 above). In any event, irrespective of these aspects referred to by the applicant in his observations, it appears that the three judgments delivered in 2001 committing the applicant for trial not only disregarded numerous factual elements raised in the criminal court proceedings, but above all concerned conduct and were based on facts that had not been referred to in the first set of proceedings. 95. The Court therefore concludes that the applicant was not prosecuted or convicted in the assize court proceedings on the basis of facts that were substantially the same as those that were the subject of his final conviction by the criminal courts. 96. Lastly, the Court reiterates that it is legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts, which it cannot condone in any circumstances (see, in particular, A. and Others v. the United Kingdom [GC], no. 3455/05, § 126, ECHR 2009; Ismoilov and Others v. Russia, no. 2947/06, § 126, 24 April 2008; and Daoudi v. France, no. 19576/08, § 65, 3 December 2009). Moreover, the applicant was convicted by the Assize Court not just on the basis of facts that differed from those for which he had been convicted in the first set of proceedings, but also for the crimes of aiding and abetting murder and attempted murder. The Court emphasises that these offences constitute serious violations of fundamental rights under Article 2 of the Convention, whose perpetrators States are required to prosecute and punish (see, mutatis mutandis, Marguš v. Croatia [GC], no. 4455/10, §§ 127-28, ECHR 2014 (extracts) ), provided that the procedural guarantees of the persons concerned are complied with (compare, in particular and mutatis mutandis, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 252, ECHR 2016), as they were in the applicant ’ s case. 97. In the light of the foregoing, the Court considers that there has been no violation of Article 4 of Protocol No. 7 to the Convention. | The Court held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention. It found in particular that the applicant in the present case had benefited from sufficient safeguards to enable him to understand his conviction by the special bench of the Assize Court of Appeal, considering that in view of the combined consideration of the three closely reasoned committal orders, the debates during the hearings of the applicant, as well as the many detailed questions put to the Assize Court, he could not claim not to know the reasons for his conviction. The Court also held that there had been no violation of Article 4 (right not to be tried or punished twice) of Protocol No. 7 to the Convention, finding that the applicant had not been prosecuted or convicted in the framework of the criminal proceedings for facts which had been substantially the same as those of which he had been finally convicted under the prior summary proceedings. The Court reiterated in particular that it was legitimate for the Contracting States to take a firm stance against persons involved in terrorist acts, which it could in no way condone, and that the crimes of complicity in murder and attempted murder of which the applicant had been convicted amounted to serious violations of the fundamental rights under Article 2 (right to life) of the Convention, in respect of which States are required to pursue and punish the perpetrators, subject to compliance with the procedural guarantees of the persons concerned, as was the situation for the applicant in the present case. |
872 | Disclosure of personal data | II. Relevant domestic law and practice A. The general principle of freedom of information 15. Under sections 1 and 2 of chapter 2 of the Freedom of the Press Act ( Tryckfrihetsförordningen ), which is part of the Swedish Constitution, everyone is entitled to access to public documents, subject to exceptions set out in the Secrecy Act ( Sekretesslagen, 1980:100). B. Confidentiality of medical information 16. One of the exceptions to this general rule relates to confidentiality of information in the field of health and medical care and is set out in chapter 7, section 1, of the Secrecy Act, which provides as follows: “Secrecy applies ... in the field of health and medical care to information on the individual's state of health or otherwise concerning his or her private life, unless it is clear that the information can be disclosed without any harm to the individual or persons closely related to him or her ...” C. Duty to submit information 17. Notwithstanding the above rule of confidentiality, in certain circumstances health and medical-care authorities are required to submit information to another public authority. Thus, chapter 14, section 1, of the Secrecy Act provides the following: “Secrecy does not prevent ... the disclosure of information to another authority, if an obligation to disclose the information is laid down in an act of law or a government ordinance.” 18. Such an obligation follows from chapter 8, section 7, of the Insurance Act, which reads as follows: “A public authority ... [is] obliged to submit, on request, to the courts, the National Social Insurance Service [ Riksförsäkringsverket ] [or] the Social Insurance Office ... information on a named person concerning circumstances of importance to the application of this Act ...” In this context, a doctor employed by a public hospital (as in the present case) is regarded as a representative of a public authority. In addition, the person applying for compensation under the Insurance Act is obliged to provide the Social Insurance Office with information of importance to the claim (chapter 8, section 6, of the Insurance Act). 19. The Social Insurance Office is under a corresponding duty to obtain a physician's opinion in relation to each reported industrial injury (section 13 of the Ordinance on Industrial Injury Insurance and State Injury Compensation Guarantee – Förordning om arbetsskadeförsäkring och statligt personskadeskydd, 1977:284). 20. Information which is submitted to the Office is protected by the rule of confidentiality provided by chapter 7, section 7, of the Secrecy Act: “Secrecy applies at the Social Insurance Office, the National Social Insurance Service and the courts in matters arising under the legislation on ... industrial injury assurance ... in respect of information on an individual's state of health or otherwise concerning his or her private life, if it can be assumed that the individual concerned or persons closely related to him or her will be harmed if the information is disclosed ...” D. Remedies 21. Under the Freedom of the Press Act and the Secrecy Act, there is a right to appeal against a decision not to grant access to public documents. There is, however, no such right in respect of decisions to grant access to information contained in public documents. Furthermore, there is no right for the individual concerned to be consulted before such information is disclosed or to be notified of the disclosure afterwards. 22. Under chapter 20, section 3, of the Penal Code ( Brottsbalken ), a physician who, intentionally or through negligence, discloses information which should be kept confidential according to law is guilty of breach of professional secrecy. Proceedings may be brought in the ordinary courts by the public prosecutor or, if the public prosecutor decides not to prosecute, the aggrieved individual. Such a breach of professional secrecy may also constitute a basis for claiming damages under chapter 2, section 1, or chapter 3, section 1, of the Damage Compensation Act ( Skadeståndslagen, 1972:207). Action may be taken by the individual against the physician or his or her employer. 23. Public authorities and their employees are, furthermore, subject to the supervision of the Chancellor of Justice ( Justitiekanslern ) and the Parliamentary Ombudsman ( Justitieombudsmannen ). The Chancellor and the Ombudsman investigate whether those exercising public powers abide by laws and follow applicable instructions and may prosecute a certain individual or refer the matter to disciplinary action by the relevant authority. PROCEEDINGS BEFORE THE COMMISSION 24. Ms M.S. lodged her application (no. 20837/92) with the Commission on 23 September 1992. She complained, under Article 8 of the Convention, that the submission of her medical records to the Social Insurance Office constituted an unjustified interference with her right to respect for private life and, under Articles 6 and 13, that she had no remedy she could use to challenge this measure. 25. The Commission declared the application admissible on 22 May 1995. In its report of 11 April 1996 (Article 31), the Commission expressed the opinion that there had been no violation of Article 8 of the Convention (twenty-two votes to five), that there had been no violation of Article 6 § 1 of the Convention (twenty-four votes to three) and that no separate issue arose under Article 13 of the Convention (twenty votes to seven). The full text of the Commission's opinion and of the five separate opinions contained in the report is reproduced as an annex to this judgment [4]. FINAL SUBMISSIONS TO THE COURT 26. At the hearing on 18 March 1997 the Government, as they had done in their memorial, invited the Court to hold that there had been no violation of the Convention in the present case. 27. On the same occasion the applicant reiterated her request to the Court stated in her memorial to find that there had been violations of Articles 6, 8 and 13 and to award her just satisfaction under Article 50 of the Convention. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 28. The applicant maintained that the communication of her medical records by the clinic to the Social Insurance Office constituted a violation of her right to respect for private life under Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 29. The Government disputed that Article 8 § 1 was applicable to the matter complained of by the applicant and maintained that, in any event, there had been no interference with any of her rights guaranteed by that provision. In the alternative, they argued that the measure had been justified under paragraph 2 of the Article. 30. The Commission was of the opinion that paragraph 1 of Article 8 applied, that there had been an interference with the applicant's right to respect for her private life under that provision but that the interference had been justified under paragraph 2. A. Article 8 § 1 1. Was Article 8 § 1 applicable? 31. In contesting the applicability of Article 8 § 1 the Government submitted that, by having initiated the compensation proceedings, the applicant had waived her right to confidentiality with regard to the medical data which the clinic had communicated to the Office (see paragraph 11 above). The measure had constituted a foreseeable application of the relevant Swedish law, from which it clearly followed that the Office was under an obligation to request the information in issue, which the clinic had a corresponding duty to impart (see paragraphs 18–19 above). In this connection, they stressed that the data had not been made public but remained confidential in the Office (see paragraph 16 above). 32. The Court observes that under the relevant Swedish law, the applicant's medical records at the clinic were governed by confidentiality (see paragraph 16 above). Communication of such data by the clinic to the Office would be permissible under the Insurance Act only if the latter authority had made a request and only to the extent that the information was deemed to be material to the application of the Insurance Act (see paragraph 18 above). This assessment was left exclusively to the competent authorities, the applicant having no right to be consulted or informed beforehand (see paragraph 21 above). It thus appears that the disclosure depended not only on the fact that the applicant had submitted her compensation claim to the Office but also on a number of factors beyond her control. It cannot therefore be inferred from her request that she had waived in an unequivocal manner her right under Article 8 § 1 of the Convention to respect for private life with regard to the medical records at the clinic. Accordingly, the Court considers that this provision applies to the matters under consideration. 2. Was there an interference? 33. With reference to the arguments set out in paragraph 31 above, the Government disputed that the communication of the data in question amounted to an interference with the applicant's right to respect for her private life under Article 8. 34. The applicant and the Commission, stressing that information of a private and sensitive nature had been disclosed without her consent to a certain number of people at the Office, maintained that the measure constituted an interference. 35. The Court notes that the medical records in question contained highly personal and sensitive data about the applicant, including information relating to an abortion. Although the records remained confidential, they had been disclosed to another public authority and therefore to a wider circle of public servants (see paragraphs 12–13 above). Moreover, whilst the information had been collected and stored at the clinic in connection with medical treatment, its subsequent communication had served a different purpose, namely to enable the Office to examine her compensation claim. It did not follow from the fact that she had sought treatment at the clinic that she would consent to the data being disclosed to the Office (see paragraph 10 above). Having regard to these considerations, the Court finds that the disclosure of the data by the clinic to the Office entailed an interference with the applicant's right to respect for private life guaranteed by paragraph 1 of Article 8. It remains to be determined whether the interference was justified under paragraph 2 of Article 8. B. Article 8 § 2 1. “In accordance with the law” 36. The applicant submitted that the disclosure of her medical records by the clinic had exceeded the Office's request. Whilst the Office had onlyasked for medical records relating to the time of her back injury allegedly sustained at work on 9 October 1981, the clinic had produced records covering a period up to February 1986 (see paragraph 12 above). The information disclosed did not therefore meet the requirement contained in chapter 8, section 7, of the Insurance Act that only data requested should be produced (see paragraph 18 above), and its communication had consequently not been “in accordance with the law”. 37. However, in the Court's view the terms of the above provision suggest that the decisive factor in determining the scope of the imparting authority's duty to provide information is the relevance of the information rather than the precise wording of the request (see paragraph 18 above). The Court is satisfied that the interference had a legal basis and was foreseeable; in other words, that it was “in accordance with the law”. 2. Legitimate aim 38. The object of the disclosure was to enable the Office to determine whether the conditions for granting the applicant compensation for industrial injury had been met. The communication of the data was potentially decisive for the allocation of public funds to deserving claimants. It could thus be regarded as having pursued the aim of protecting the economic well-being of the country. Indeed this was not disputed before the Court. On the other hand, the Court does not consider it necessary to examine the second aim invoked by the Government, namely protection of the “rights ... of others”. 3. “Necessary in a democratic society” 39. In the applicant's submission, the disclosure of her medical records could not be regarded as having been necessary in a democratic society. She maintained that, while there was no dispute as to the fact that her disability prevented her from working, there was disagreement as to its cause, whether it was spondylolisthesis or the alleged work injury (see paragraphs 9–10 above). Information about her abortion in 1985 had been irrelevant to the issue to be determined by the Office (see paragraphs 12–13 above). In addition, she argued that the duty of confidentiality to which public servants at the Office were subject provided a weaker protection of the applicant's interests than that applying to medical personnel at the clinic. Thus, whilst it was for the patient to show that he or she had suffered damage as a result of disclosure by an ordinary public servant, a doctor had to show that disclosure had not caused damage. In addition, she maintained that an effective protection of her rights under Article 8 required that she should have been notified of the clinic's intention to communicate the data and afforded an opportunity to exercise judicial remedies against that decision before it was implemented (see paragraph 21 above). 40. The Government and the Commission were of the view that the disclosure was “necessary”. Not only had the medical records been relevant to the Office's decision but the fact that they might be relevant must also have been apparent to her when she made her claim. Even the information concerning the abortion had related to her back problems (see paragraph 13 above). If the Office had been requested to rely exclusively on the applicant's submissions, there would have been a risk of her withholding relevant evidence. Since the data remained confidential while they were in the possession of the Office (see paragraph 16 above), the interference which the disclosure had entailed was of a limited nature. 41. The Court reiterates that the protection of personal data, particularly medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. The domestic law must afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention (see the Z v. Finland judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 347, § 95). Bearing in mind the above considerations and the margin of appreciation enjoyed by the State in this area, the Court will examine whether, in the light of the case as a whole, the reasons adduced to justify the interference were relevant and sufficient and whether the measure was proportionate to the legitimate aim pursued (ibid., § 94). 42. Turning to the particular circumstances, the Court notes that the applicant's medical data were communicated by one public institution to another in the context of an assessment of whether she satisfied the legal conditions for obtaining a benefit which she herself had requested (see paragraphs 11–14 above). It recognises that, in deciding whether to accept the applicant's compensation claim, the Office had a legitimate need to check information received from her against data in the possession of the clinic. In the absence of objective information from an independent source, it would have been difficult for the Office to determine whether the claim was well-founded. That claim concerned a back injury which she had allegedly suffered in 1981, and all the medical records produced by the clinic to the Office, including those concerning her abortion in 1985 and the treatment thereafter, contained information relevant to the applicant's back problems. As appears from the records of 1985, her back pains constituted the main reason for the termination of pregnancy (see paragraphs 12–13 above). Moreover, the data covered the period in respect of which she claimed compensation under the Insurance Act (see paragraphs 10–11 above). In the Court's view, the applicant has not substantiated her allegation that the clinic could not reasonably have considered her post-1981 medical records to be material to the Office's decision. 43. In addition, under the relevant law it is a condition for imparting the data concerned that the Office has made a request and that the information be of importance for the application of the Insurance Act (see paragraph 18 above). Staff at the clinic could incur civil and/or criminal liability had they failed to observe these conditions (see paragraph 22 above). The Office, as the receiver of the information, was under a similar duty to treat the data as confidential, subject to similar rules and safeguards as the clinic (see paragraphs 20 and 22 above). In the circumstances, the contested measure was therefore subject to important limitations and was accompanied by effective and adequate safeguards against abuse (see the above-mentioned Z v. Finland judgment, p. 350,§ 103). 44. Having regard to the foregoing, the Court considers that there were relevant and sufficient reasons for the communication of the applicant's medical records by the clinic to the Office and that the measure was not disproportionate to the legitimate aim pursued. Accordingly, it concludes that there has been no violation of the applicant's right to respect for her private life, as guaranteed by Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 45. The applicant further alleged a breach of Article 6 § 1 of the Convention, which, in so far as is relevant, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] … tribunal ...” She complained in particular that, contrary to this provision, she had not been afforded a possibility, prior to the communication of her medical records by the clinic, to challenge the measure before a court (see paragraph 21 above). 46. The Government disputed that Article 6 § 1 was applicable and maintained that, in any event, it had been complied with in the present case (see paragraphs 22–23 above). The Commission, for its part, considered that the provision was applicable and had been complied with (see paragraph 22 above). 47. The Court must first examine whether Article 6 § 1 was applicable to the disagreement between the applicant and the Swedish authorities as to the disclosure of her medical records. It reiterates that, according to the principles laid down in its case-law (see the judgments of Zander v. Sweden, 25 November 1993, Series A no. 279-B, p. 38, § 22, and Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 12, § 32), it must ascertain whether there was a dispute (“ contestation ”) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise; and the outcome of the proceedings must be directly decisive for the right in question. Finally, the right must be civil in character. 48. Under the rule on confidentiality in chapter 7, section 1, of the Secrecy Act, a duty of confidentiality applied to the data in issue in the present case (see paragraph 16 above). The provision was evidently designed to protect a patient's interest in non-disclosure of medical data. 49. On the other hand, according to chapter 14, section 1, of the Secrecy Act the rule of confidentiality did not apply where a statutory obligation required the disclosure of information to another authority (see paragraph 17 above). In the case under consideration, the clinic had been under an obligation to supply the Office with “information on [the applicant] concerning circumstances of importance to the application of [the] Act ...” (chapter 8, section 7, of the Insurance Act). Thus, the obligation incumbent on the imparting authority vis-à-vis the requesting authority depended exclusively on the relevance of the data in its possession; it comprised all data which the clinic had in its possession concerning the applicant and which were potentially relevant to the Office's determination of her compensation claim. In addition to the scope of this obligation as described above, the Court notes that the clinic enjoyed a very wide discretion in assessing what data would be of importance to the application of the Insurance Act. In this regard, it had no duty to hear the applicant's views before transmitting the information to the Office (see paragraph 21 above). Accordingly, it appears from the very terms of the legislation in issue that a “right” to prevent communication of such data could not, on arguable grounds, be said to be recognised under national law (see the Masson and Van Zon v. the Netherlands judgment of 28 September 1995, Series A no. 327-A, pp. 19–20, §§ 49–52). No evidence suggesting the contrary has been adduced before the Court. 50. Having regard to the foregoing, the Court reaches the conclusion that Article 6 § 1 was not applicable to the proceedings under consideration and has therefore not been violated in the present case. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 51. Relying on essentially the same arguments as with regard to Article 6 § 1, the applicant claimed that there had also been a violation of Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” She maintained that, since the disclosure of confidential data was a measure that could not be reversed, it was crucial for the effectiveness of a remedy against disclosure that the interested person should be able to exercise it beforehand. 52. The Government contended that Article 13 was not applicable, as they did with regard to Articles 6 § 1 and 8. However, they accepted that if the Court found Article 8 applicable and Article 6 § 1 inapplicable, a separate issue would arise under Article 13. In their view, the aggregate of remedies (see paragraphs 21–23 above) available to the applicant in order to obtain redress for breach of confidentiality satisfied the requirements of that provision. 53. The Commission, having found that Article 6 § 1 was applicable and had been complied with in the present case, did not deem it necessary to examine the applicant's complaint also under Article 13. Since the requirements in Article 13 were less strict than, and were absorbed by, those in Article 6 § 1, it concluded that no separate issue arose under the former provision. 54. In view of its conclusions with respect to the applicant's complaints under Articles 8 and 6 § 1 (see paragraphs 32 and 50 above), the Court considers that a separate issue arises with regard to her complaint under Article 13. Article 13 of the Convention guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy allowing the competent “national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under Article 13 (see, for instance, the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, pp. 1869–70, § 145). However, the Article 13 guarantee applies only in respect of grievances under the Convention which are arguable (see, for example, the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52). 55. The applicant's complaint under Article 8 was essentially that the clinic had communicated to the Office certain data which in her view were irrelevant to the latter's examination of her compensation claim (see paragraphs 36 and 39 above). Having regard to its findings under Article 8 above, the Court is satisfied that she had an arguable claim for the purposes of Article 13. It remains to examine whether she was afforded an effective remedy. In this regard, it was open to her to bring criminal and civil proceedings before the ordinary courts against the relevant staff of the clinic and to claim damages for breach of professional secrecy (see paragraph 22 above). Thus the applicant had access to an authority empowered both to deal with the substance of her Article 8 complaint and to grant her relief. Having regard to the limited nature of the disclosure and to the different safeguards (see paragraphs 16–18, 20 and 22 above), in particular the Office's obligation to secure and maintain the confidentiality of the information, the Court finds that the various ex post facto remedies referred to above satisfied the requirements of Article 13. 56. Accordingly, the Court finds no violation of Article 13 of the Convention in the present case. | The Court held that there had been no violation of Article 8 of the Convention, finding that there had been relevant and sufficient reasons for the communication of the applicant's medical records by the clinic to the social-security body and that the measure had not been disproportionate to the legitimate aim pursued, namely, by enabling the social-security body to determine whether the conditions for granting the applicant compensation for industrial injury had been met, to protect the economic well-being of the country. Moreover, the contested measure was subject to important limitations and was accompanied by effective and adequate safeguards against abuse. |
787 | Organ transplantation | THE LAW ALLEGED VIOLATION OF ARTICLES 8 AND 9 OF THE CONVENTION RELATING TO THE POST-MORTEM EXAMINATION 47. The applicant complained under Articles 8 and 9 of the Convention that the carrying out of the post-mortem on her son’s body against her will had violated both her right to respect for her private and family life and her right to freedom of religion, and that the domestic courts had not conducted a balancing exercise regarding the conflicting interests in that respect. Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 9 reads as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” AdmissibilityApplicability of Article 8 of the Convention Applicability of Article 8 of the Convention Applicability of Article 8 of the Convention 48. The Court observes that the exercise of Article 8 rights concerning family and private life pertains, predominantly, to relationships between living human beings. However, the possibility cannot be excluded that respect for family and private life extends to certain situations after death (see Sargsyan v. Azerbaijan [GC], no. 40167/06, § 255, ECHR 2015; Jones v. United Kingdom (dec.), no. 42639/04, 13 September 2005). In the cases of Petrova v. Latvia (no. 4605/05, § 77, 24 June 2014) and Elberte v. Latvia (no. 61243/08, § 89, ECHR 2015) the Court recognised that the removal of a deceased relative’s organs or tissues without consent fell within the scope of the “private life” of the surviving family members. 49. The Court notes that the Government did not contest the applicability of Article 8. Having regard to its case-law, the Court sees no reason to come to a different conclusion. It considers that the complaint relating to the performance, against the applicant’s will, of the post-mortem examination conducted on her son comes within the scope of Article 8 in so far as her right to respect for her private and family life is concerned. This Article is therefore applicable in the present case. Applicability of Article 9 of the Convention 50. The Court reiterates that freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 of the Convention lists a number of forms that manifestation of one’s religion or belief may take – namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief (see Johannische Kirche and Peters v. Germany (dec.), no. 41754/98, 10 July 2001). 51. The Court has previously held that the manner of burying the dead represents an essential aspect of religious practice and falls under the right to manifest one’s religion within the meaning of Article 9 § 2 of the Convention ( ibid. ). Article 9 is therefore applicable to the applicant’s complaint that the post-mortem had been carried out against her declared religious convictions, as she submitted that it had prevented her from burying her son in accordance with her beliefs. Conclusion 52. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsHas there been an interference with the applicant’s rights? Has there been an interference with the applicant’s rights? Has there been an interference with the applicant’s rights? 53. The Court considers that the post-mortem of the corpse of the applicant’s deceased son, carried out despite her and her husband’s objections, could be regarded as impinging on her relational sphere in such a manner and to such a degree as to disclose an interference with her right to respect for her private and family life under Article 8 of the Convention (compare Solska and Rybicka v. Poland, nos. 30491/17 and 31083/17, § 110, 20 September 2018). 54. As regards Article 9 of the Convention, the Court has held that in their activities, religious communities abide by rules that are often seen by followers as being of divine origin. Religious ceremonies have their meaning and sacred value for believers if they have been conducted by ministers empowered for that purpose, in compliance with those rules. Participation in the life of the community thus constitutes a particular manifestation of their religion, which is in itself protected by Article 9 (see İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 111, 26 April 2016). The Court considers that the applicant burying her son in accordance with her Muslim beliefs, which required the body to remain unscathed, constituted a manifestation of her religion. 55. Regard being had to its case-law and the above-mentioned circumstances of the case, the Court finds that the post-mortem conducted on the body of the applicant’s son against her will and against her declared religious convictions constituted an interference with her “private” and “family life” within the meaning of Article 8 of the Convention, as well as her right to manifest her religion under Article 9 of the Convention. Was the interference justified? 56. In order to be justified under Articles 8 § 2 and 9 § 2 of the Convention, any interference must be in accordance with the law, pursue one of the listed legitimate aims and be necessary in a democratic society ( ibid., § 98). (a) Accordance with the law 57. The applicant did not dispute that holding the post-mortem had been in accordance with the law. 58. The Government argued that Article 8 of the Convention did not per se stipulate that a domestic legal regulation – if formulated with sufficient clarity – required in any event the consent of the relatives of the deceased in question in order for a post-mortem examination to be carried out (with reference to the above cited judgments in the cases of Petrova and Elberte ). They contended that section 25 of the Hospital Act complied with the clarity requirements. 59. The Court reiterates that the expression “prescribed by law” in Articles 8 § 2 and 9 § 2 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects. However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, Delfi AS v. Estonia [GC], no. 64569/09, § 120, ECHR 2015). 60. The Court observes that the post-mortem was carried out on the basis of section 25 of the Hospital Act and section 12(3) of the Funeral Act. The domestic courts based their assessment of the applicant’s case on those provisions (see paragraphs 38 and 42 above). Given that the Court sees no valid reason to question the interpretation of those provisions by the domestic courts, it accepts that the interference complained of was “prescribed by law”. (b) Legitimate aim 61. While the applicant conceded that post-mortem examinations might serve the aim of the protection of health, she argued that her son’s post ‑ mortem had not contributed to the advancement of science or to the attainment of new findings, but in the end had only served to confirm his individual diagnosis. Hence, this legitimate aim had not been achieved in the instant case. 62. The Government submitted that section 25 of the Hospital Act served a legitimate aim – namely the protection of health, which was rendered clear by the preparatory work on that provision: - Firstly, a post-mortem examination often constituted the only possibility for the doctor in charge to review his/her own diagnosis and applied therapy. Moreover, the reasons for a failure in treatment could also be determined as a result of a post-mortem examination. - Secondly, post-mortem examinations carried out systematically permitted the collection of secure data by the health authorities regarding the existence and frequency of individual diseases and causes of death, thus enabling them to take general preventive and combative measures. - Thirdly, the result of a post-mortem examination could also be particularly valuable for the relatives of the deceased, since it often provided essential indications of genetic predispositions towards certain diseases, thus permitting early prevention. 63. The Government submitted that post-mortem examinations were therefore not only important in order to achieve diagnostic clarity and quality control; the examination of the exact nature of Y.M.’s illness could also – by detecting any possible genetic defects – be important for the applicant and any offspring that she might have in the future. 64. The Government argued that the Austrian Supreme Court had thus rightly noted in its judgment in respect of the instant case that the legal aim of the provisions referred to was to enable experts to acquire additional (medical) knowledge without there having to be a prior intention or possibility on the part of those experts to use data and information obtained in any individual case for strictly scientific purposes. The interests of living individuals were thus given more weight than those of the deceased, in accordance with the principle mors auxilium vitae. 65. The Court notes that the Supreme Court has held that the aim of the protection of public health could also be served by eliminating any diagnostic ambiguities (see paragraph 33 above), as has been the case with the applicant’s son. The Court therefore accepts that the post-mortem was conducted for the safeguarding of scientific interests and served the legitimate aim of the protection of the health of others, as extensively demonstrated by the Supreme Court’s reasoning as well as the Government’s submissions above. (c) Proportionality of the interference (i) The applicant’s submissions 66. The applicant alleged that the post-mortem and the removal of the organs had not been conducted lege artis, which constituted per se a violation of Article 9 of the Convention, as the body of Y.M. had thereby been disfigured. 67. Furthermore, the applicant argued that the conducting of a balancing exercise was not provided in section 25 of the Hospital Act or section 12 of the Funeral Act, and had not been conducted in respect of her case, either. The law did not provide for any possibility to object to post-mortem examinations for religious reasons. 68. The applicant maintained that the post-mortem of Y.M. had been ordered without any medical necessity. The above-mentioned expert, Dr V., had confirmed in his opinion that the results of the post-mortem had not been entered into the personal file of the deceased Y.M., and had not resulted in any new medical discoveries. Consequently, it had not served the aim of advancing public health or safety. The post-mortem had merely served to confirm the diagnoses already arrived at. The applicant contended that the aim of quality control had not been proportionate to such a severe interference with her rights under Articles 8 and 9 of the Convention. (ii) The Government’s submissions 69. The Government submitted that the Austrian legislature had struck a fair balance of interests in the relevant provisions (section 25 of the Hospital Act and the corresponding section 12(3) of the Funeral Act – see paragraphs 38 and 42 above), defining for the purposes of the protection of health those cases where, in a public hospital, a post-mortem examination had to be carried out in any event and there was no room for discretion in respect of any individual case. If the doctor treating a patient found that there was a scientific interest (in particular, in view of a lack of diagnostic clarity) in conducting a post-mortem examination following that patient’s death, the individual interests of the relatives of that patient had to be disregarded. The applicable legal provisions ensured in any event that post-mortem examinations would be carried out only to the absolutely necessary extent. 70. The Government submitted that at all three levels of jurisdiction the domestic courts had considered the applicant’s submissions carefully and comprehensively, examining point by point whether the physicians’ activities had been in conformity with the law. The courts had examined all the relevant evidence, heard numerous witnesses (including the doctors involved and other physicians), consulted the Patients’ Ombudsperson, and obtained several expert opinions. It was for the national courts to weigh evidence; that the courts had made a mistake in this respect was not discernible. 71. The Government reiterated that both the domestic courts and the experts in their opinions had unanimously come to the conclusion that the diagnosis had been unclear within the meaning of section 25 of the Hospital Act. It was true that a diagnosis of Prune-Belly-Syndrome had been strongly indicated. However, a final confirmation of that diagnosis – especially in view of the fact that some symptoms were common to other, similar malformations – had been possible only by means of conducting a post-mortem examination. A post-mortem had thus been carried out, on the one hand in order to clarify beyond doubt the cause of death, and on the other, to clarify whether such a disease might occur in any future siblings or in descendants of siblings already born. The post-mortem of the corpse of the applicant’s son had therefore been necessary for reasons of scientific interest within the meaning of section 25 of the Hospital Act and had been rightly carried out without the applicant’s consent. It could also be seen from the experts’ opinions that the post-mortem had been carried out lege artis and that a detailed, high-quality post-mortem report had been produced. The provisional removal and storing of organs outside a corpse was part of standard post-mortem procedure and necessary in order to safeguard scientific interests; in the case of the applicant’s son, it had been carried out in an appropriate and professional manner. 72. The Government therefore took the view that the post-mortem of the corpse of the applicant’s son had not constituted a violation of her rights under Article 8 of the Convention. 73. Referring to the Supreme Court’s findings on the issue (see paragraph 33 above), the Government submitted that there had been no violation of Article 9 of the Convention either. (iii) The Court’s assessment α. General principles 74. The Court reiterates that in determining whether an impugned measure was “necessary in a democratic society”, it will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 179, 24 January 2017, with further references). 75. In cases arising from individual applications the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it ( ibid., § 180, with further references). 76. According to the Court’s established case-law, the notion of necessity implies that the interference in question corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests (see A, B and C v. Ireland, cited above, § 229). 77. In determining whether an interference was “necessary in a democratic society” the Court will take into account the fact that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention (see X, Y and Z v. the United Kingdom, 22 April 1997, § 41, Reports 1997 ‑ II). 78. The Court reiterates that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when deciding any case under Article 8 of the Convention (see, among many other authorities, S.H. and Others v. Austria [GC], no. 57813/00, § 94, ECHR 2011; and Hämäläinen v. Finland [GC], no. 37359/09, § 67, ECHR 2014). Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it (particularly where the case raises sensitive moral or ethical issues), the margin will be wider ( ibid., § 77; see also A, B and C v. Ireland, cited above, § 232). There will usually be a wide margin of appreciation accorded if the State is required to strike a balance between competing private and public interests or Convention rights (see Evans, cited above, § 77, and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V; see also, mutatis mutandis, Vavřička and Others v. the Czech Republic [GC], no. 47621/13 and 5 others, §§ 275 and 280, 8 April 2021). 79. In a case relating to an exhumation conducted against the will of the surviving family members for the purpose of a criminal investigation, the Court has held that the State authorities are required to find a due balance between the requirements of an effective investigation under Article 2 and the protection of the right to respect for private and family life of the parties to the investigation and other persons affected under Article 8. The Court has found, in that context, that the requirements of the investigation’s effectiveness have to be reconciled to the highest possible degree with the right to respect for private and family life. There may be circumstances in which exhumation is justified, despite opposition by the family (see Solska and Rybicka, cited above, § 121). β. Application to the instant case 80. The Court considers that the case at issue concerns the regulation of post-mortem examinations in public hospitals and the question of whether and in which cases close relatives of the deceased should be granted the right to object to a post-mortem examination for reasons related to private life and religion where interests of public health clearly call for such a measure. It thus relates to sensitive moral and ethical issues, and requires a balance to be struck between competing private and public interests. The Court reiterates in this context that the Contracting States are under a positive obligation, by virtue of Article 8, to take appropriate measures to protect the health of those within their jurisdiction (see Vavřička and Others, cited above, § 282). Consequently, the State’s margin of appreciation must be considered to be wide. 81. In particular, the present case required a balancing exercise between, on the one hand, the protection of the health of others through the conduct of the post-mortem examination (see paragraph 65 above) and, on the other, the protection of the applicant’s right to respect for her private and family life (Article 8) and her right to manifest her religion (Article 9). 82. In the instant case, the applicant alleged, first of all, that her son’s post-mortem had not been carried out lege artis. However, the Court notes that the expert opinion issued by the pathologist, Dr L. (see paragraph 28 above) explicitly concluded that the post-mortem had been carried out lege artis. The Court sees no reason to question that finding. 83. Secondly, the applicant alleged, essentially, that her religious convictions should have been taken into account by the hospital when deciding whether to carry out a post-mortem examination. She complained that no balancing exercise was provided for by the applicable laws, nor had such an exercise been conducted by the hospital. 84. The Court notes that Austrian law does not grant in all cases a right to object to a post-mortem examination of close relatives on religious or any other grounds. The Court sees no reason to call this legislative choice into question. The rights under Articles 8 and 9 are not absolute and therefore do not require the Contracting States to grant an absolute right to lodge an objection in that regard. 85. Thirdly, the Court observes that the post-mortem was carried out on the basis of section 25 of the Hospital Act and section 12(3) of the Funeral Act (see paragraph 60 above). It therefore considers it appropriate for it to assess the relevant legislative choices. Pursuant to section 25 of the Hospital Act, as well as the corresponding section 12(3) of the Funeral Act (see paragraphs 38 and 42 above), in cases of a death in a public hospital, a post-mortem shall be carried out - irrespective of the consent of the close relatives - if it is necessary, inter alia, in order to safeguard scientific or other public interests. If it is not necessary to safeguard such interests and none of the other criteria enumerated in section 25 of the Hospital Act apply, a post-mortem may only be carried out with the consent of the deceased’s closest relatives. The law therefore does not give the authorities the right to conduct post-mortem examinations in each and every case. The Court notes, however, that the Austrian legislature has chosen to give precedence to the interests of science and the health of others over religious or any other reasons for objection on the part of the relatives of a deceased person in cases of necessity for safeguarding scientific interests - in particular if a case is diagnostically unclear. 86. The Court emphasises the Government’s submissions to the effect that the advancement of modern medicine has in part been made possible by post-mortem examinations establishing the cause of death and contributing to the prevention of thereby discovered illnesses and ailments in those still alive (see also the preparatory work on section 25 of the Hospital Act, cited in paragraph 39 above) – irrespective of religious or other convictions. In other words, mortui vivos docent – “the dead teach the living”. In that connection, the Court also notes the long and carefully preserved tradition of autopsy law in Austria, which is perceived as an integral part of the constitutionally guaranteed freedom of science (see paragraphs 36 and 40 above). This right is closely related to the positive obligations under the Convention, notably Articles 2 and 8, to take appropriate measures to protect the life and health of those within a State´s jurisdiction (see Vavřička and Others, cited above, § 282). 87. The Court thus considers that the legitimate aim cited by the Government, namely the protection of the health of others through the conduct of post-mortem examinations, is of particular importance and weight in the instant case. At the same time, the Court is mindful of the relevance in this context of the applicant’s interest in ensuring that the remains of her deceased son were respected for the purpose of the funeral, a concern that she had expressed from the outset (see paragraphs 7, 9 and 11 above; compare Solska and Rybicka, cited above, § 122). 88. The Court notes that the evidence taken during domestic proceedings confirmed the lawfulness of the performance of the post-mortem. Two independent expert opinions found that the post-mortem had been performed in order to confirm a previous diagnosis (see paragraphs 27-28 above) and had clearly served the safeguarding of scientific interests. They stated that so-called “Prune-Belly-Syndrome” was a disease that had not yet been sufficiently explored; moreover, there also existed an illness with similar symptoms, and Y.M.’s post-mortem had served to secure diagnostic clarity in respect of his case. The Court is therefore satisfied, in line with the domestic courts’ findings, that the legal requirement that there be a scientific interest in performing a post-mortem examination was met in the instant case. 89. However, even though there was indeed a scientific interest in performing the post-mortem examination, the Court reiterates that section 25 of the Hospital Act stipulates that a post-mortem examination can only be performed in such circumstances if it is “necessary” in order to safeguard such a scientific interest, which leaves a certain scope of discretion, including as to the extent of the intervention necessary, to the doctors deciding on whether a post-mortem examination should be carried out in any given case. It therefore does not exclude that a balancing of competing rights and interests could or should be carried out. The Court considers that in the applicant’s case, however, her reasons for opposing the post-mortem of her son’s body were not taken into account by the public hospital’s staff in charge of that decision (see paragraph 9 above). Nor did the Court of Appeal, which dismissed the applicant’s claim for damages (see paragraph 30 above), weigh the importance of the scientific interest in the post-mortem against the applicant’s particular private interest in having her son’s body “as unscathed as possible” for the religious funeral (see paragraph 7 above). While the Court accepts the wide margin of appreciation of the domestic authorities (see paragraph 80 above), in the instant case they do not appear to have conducted any balancing exercise between the competing interests. 90. The Court notes that the applicant had been able to submit her complaints as to the violation of her rights under Articles 8 and 9 to the Supreme Court, and that the latter addressed, to some extent, the proportionality of the interference with her rights, agreeing with the legislative choices and confirming the scientific interest in the material post-mortem examination. It considered that in the present case, the carrying out of the latter had been in the interest of public health in order to assess the quality of the medical treatment given to the applicant’s son, to eliminate any diagnostic ambiguities and to promote scientific knowledge (see paragraph 33 above). However, the applicant’s reasons for opposing the post-mortem were given little to no consideration. The Supreme Court therefore did not sufficiently address her individual rights under Articles 8 and 9 of the Convention and the “necessity” of the post-mortem in that light. 91. The foregoing considerations are sufficient to enable the Court to conclude that the authorities in the instant case have not struck a fair balance between the competing interests at stake by reconciling the requirements of public health to the highest possible degree with the right to respect for private and family life (compare Solska and Rybicka, cited above, § 121; see paragraph 79 above), nor did they weigh the applicant’s interest in burying her son in accordance with her religious beliefs in the balance. This failure to conduct a balancing exercise constituted a violation of Articles 8 and 9 of the Convention. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION REGARDING THE DUTY TO DISCLOSE INFORMATION 92. The applicant complained under Article 8 of the Convention that the hospital had failed to comply with its duty to inform her of the extent of the post-mortem and the removal of the inner organs of her deceased son. She submitted that this lack of information on the post-mortem had an impact on the choice of her son’s funeral arrangement, which she and her husband expressly wished to organise according to their religious beliefs. AdmissibilityApplicability of Article 8 of the Convention Applicability of Article 8 of the Convention Applicability of Article 8 of the Convention 93. The Court reiterates that the right of access to information relating to one’s private and/or family life raises an issue under Article 8 of the Convention (see, among other authorities, Roche v. the United Kingdom [GC], no. 32555/96, §§ 155-56, ECHR 2005‑X; and, in particular, Lozovyye v. Russia, no. 4587/09, § 32, 24 April 2018, in which the Court found that Article 8 was applicable to a situation where the family of a murder victim had not been informed of his death and had not been able to attend the funeral). 94. The Court has held that the concepts of “private life” and “family life” encompass the right to bury a close relative and to be present when that burial takes place (see Gülbahar Özer and Yusuf Özer v. Turkey (no. 64406/09, § 26, 29 May 2018, with further references). In the cases of Pannullo and Forte v. France (no. 37794/97, §§ 35-36, ECHR 2001‑X) and Girard v. France (no. 22590/04, § 107, 30 June 2011) the Court recognised that an excessive delay in the restitution of a body after a post-mortem or of bodily samples upon completion of the relevant criminal proceedings could constitute an interference with both the “private life” and the “family life” of the surviving family members. In the case of Hadri ‑ Vionnet v. Switzerland (no. 55525/00, § 52, 14 February 2008) the Court decided that the possibility for the applicant to be present at the funeral of her stillborn child, along with the related transfer and ceremonial arrangements, was also capable of falling within the ambit of both “private” and “family life”, within the meaning of Article 8. The Court has also held that a mother being unable to carry out her religious duties at the grave of her stillborn child raises an issue under the concept of “family life” under Article 8 (see Yıldırım v. Turkey (dec.), 25327/02, 11 September 2007). 95. Regard being had to its case-law concerning surviving family members and the above-mentioned circumstances, the Court finds that the applicant’s complaint concerning the hospital’s duty to disclose information relating to her son’s post-mortem falls within the scope of the right to respect for private and family life. The Government’s objection relating to the non-exhaustion of domestic remedies 96. The Government submitted that if it could be said that the applicant had indeed alleged a violation of Article 8 before the domestic courts in relation to the hospital’s duty to disclose information, she had done so only in substance – that is to say without mentioning Article 8. They therefore considered that complaint to be inadmissible for non-exhaustion of domestic remedies. 97. The applicant did not comment on the admissibility of that complaint. 98. The Court notes that the question of the extent of the information provided regarding her son’s post-mortem was indeed one of the subjects of the domestic liability proceedings (see paragraph 21 above), even though the applicant did not specifically refer to Article 8 of the Convention during those proceedings. It reiterates that it is sufficient that the applicant raised the above complaint in substance before the domestic courts (see, among many other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014). It therefore dismisses the Government’s objection of non-exhaustion in respect of this complaint. Conclusion 99. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe applicant’s submissions The applicant’s submissions The applicant’s submissions 100. The applicant alleged that medical staff had at first told her that no post-mortem would be performed, after she had told them that she objected to it for religious reasons. Later, the hospital explained to her that the planned post-mortem of the body would only be carried out to a minor extent, and would entail making just a small incision measuring about 4 cm. She had continued to object, but the post-mortem had been performed nonetheless, without her or her husband’s consent. 101. She furthermore contended that she had not been informed that the removal of all internal organs had taken place (including the urinary tract, which had rendered the child’s sex unrecognisable) or that the body had been refilled with cotton wool. The post-mortem and the removal of the organs had made a burial in accordance with her religious beliefs impossible. 102. The applicant submitted that the post-traumatic stress disorder from which she suffered was a direct result of the shock that she had had when seeing her child’s body in such an unexpected state at the funeral ceremony. She would never have planned and conducted a funeral ceremony in Turkey (but would instead have buried her son in Austria) had she known that her child’s body had undergone such an extensive post-mortem. The Government’s submissions 103. The Government submitted that physicians’ duty to provide information and explanations to the relatives of deceased patients stemmed mutatis mutandis from section 5a of the Hospital Act and section 30 of the Vorarlberg Hospital Act as a subsidiary duty under the treatment contract. Such clarifications typically served the purpose of preventing foreseeable damage. The Government added that according to the Supreme Court’s case-law, the existence and scope of the obligation, under a private-law contract, to provide information always depended on the circumstances of each individual case. It was difficult to issue general statements regarding precisely when there was a duty to warn and inform. However, it could be said that the standard to be applied became stricter the higher the damage that could emanate from a certain risk. But in any event, the duty to disclose information ended at the point where it became clear such a disclosure would threaten the interests of the person to be informed. 104. The Government argued that a physician’s duty to inform a patient about a medical treatment was not applicable to the same extent in respect of the case at issue: in the present case there had been no duty to disclose information, as the case had not concerned the right to self-determination of a patient whose physical integrity had been unlawfully and with irreversible consequences affected by a certain treatment measure (see the above-mentioned Supreme Court judgment, paragraphs 32-34 above). What the Government considered to be at issue in the instant case was rather the rights of the relatives after the death of a patient, which is why another standard had to be applied regarding doctors’ duty to provide information. The Court’s assessment 105. At the outset, the Court notes that it has not been contested that the hospital was a public institution and that the acts or omissions of its medical staff – including the doctors and physicians who decided to perform and who carried out the post-mortem – were capable of engaging the responsibility of the respondent State under the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004‑II, and Elberte, cited above, § 106). 106. The Court points out that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55; and Pannullo and Forte, cited above, § 35). 107. In choosing how to comply with their positive obligations, States enjoy a broad margin of appreciation (see A, B and C v. Ireland [GC], no. 25579/05, § 249, ECHR 2010). 108. The substance of the applicant’s complaint is not that the State acted in a certain way, but that it failed to act (see Airey v. Ireland, 9 October 1979, § 32, Series A no. 32); namely, she alleged that the hospital omitting to inform her of the extent of the post-mortem and the removal of the organs had violated her rights, as guaranteed by Article 8 of the Convention. The Court finds it appropriate to approach the present case from the perspective of a positive obligation on the part of the respondent State under Article 8 of the Convention (see, to similar effect, Lozovyye, cited above, § 37). 109. In order to establish whether the requirements of Article 8 of the Convention were met in the present case the Court will examine, firstly, whether an appropriate legal framework was in place in Austria concerning any possible duty to disclose information to close relatives regarding the extent and manner of a post-mortem conducted on a deceased person (see, mutatis mutandis, Lozovyye, cited above, § 39). 110. The Court notes that in the instant case, the Supreme Court held that the laws concerning a patient’s right to information were not directly applicable, as they concerned the treatment of the living and aimed at enabling patients to take informed choices in respect of their own health (see paragraph 34 above). The Government submitted that the physicians’ duty to provide information and explanations to the relatives of a deceased person stemmed mutatis mutandis from section 5a of the Hospital Act, but did not apply to the same extent as it applied to the living. 111. The Court notes that there appears to be no clear rule under Austrian law governing the extent of information that must or must not be given to close relatives of a deceased person in respect of whom a post ‑ mortem has been performed. 112. Nonetheless, in the Court’s view this lack of a clear rule is not sufficient in itself to find a violation of the respondent State’s positive obligations under Article 8 of the Convention in the present case (compare Lozovyye, cited above, § 42). 113. The Court will therefore next examine whether the Austrian authorities undertook reasonable steps to provide the applicant with information as to the extent the post-mortem performed, given the circumstances. 114. The Court has held, in a case where State employees organised the burial of the applicant’s child without informing her of the time or place thereof, that it is the duty of the Contracting States to organise their services and to train their agents in such a way that they can meet the requirements of the Convention. It furthermore stated that in an area as personal and delicate as the management of the death of a close relative, a particularly high degree of diligence and prudence must be exercised by the authorities (see Hadri-Vionnet, cited above, § 56). 115. In the instant case, the applicant had just lost a child and was confronted with a situation in which she had no legal right to object to a post-mortem examination being conducted on that child. She had informed the hospital staff that according to her religious beliefs the deceased child’s body needed to be as unscathed as possible for the burial ceremony. The Court considers that these specific circumstances are as delicate as those in the case of Hadri-Vionnet (cited above) and required an equally high degree of diligence and prudence on the part of the hospital staff when interacting with the applicant. Given the fact that the hospital staff was made aware by the applicant of the reasons for her objection to the post-mortem, the Court considers that the hospital had an even greater duty to provide her with appropriate information regarding what had been done and what would be done with her child’s body. The Court notes that after her son’s death, the applicant was informed that a post-mortem would be performed despite her objections (see paragraph 9 above). Whether she was indeed told that “only a small incision of about 4 cm” would be made cannot be confirmed from the documents at hand (see paragraph 13 above), moreover it was not established by the domestic courts. However, the Court finds it established that the hospital had not informed the applicant of the extent of the post-mortem, which led her to believe that a ritual washing and a funeral ceremony in accordance with her beliefs could be held. Therefore, she and her husband proceeded to organise such a ceremony in Turkey. 116. The Court reiterates that the Supreme Court stated in its final judgment that the doctors concerned had rightly refrained from giving detailed explanations to the applicant and her husband regarding the extent of the post-mortem (see paragraph 34 above). It conceded, at the same time, that the routine removal of organs during post-mortem examinations was not common knowledge but considered that omitting to give detailed explanations regarding a post-mortem examination would potentially be less burdensome to the relatives of the deceased. The Court considers that the Supreme Court’s argument that omitting to give detailed information would be less burdensome to the relatives may be valid in some situations, but did not take into account the specific situation in the applicant’s case: she had made it clear that she wished to have a funeral in accordance with her beliefs which required her son’s body to remain as unscathed as possible. The details on the extent of the post-mortem were therefore of particular importance for her, a fact which she had communicated to the hospital at several occasions. 117. Moreover, the Court considers that in the specific circumstances of the instant case, the hospital had a duty to inform the applicant about the removal of her son’s organs. The Court notes, in this regard, that the Supreme Court held that it could not be seen as common knowledge that all organs are removed during the post-mortem of a new-born. It remained undisputed by the Government that the hospital staff initially denied having removed any organs, but later admitted that they had in fact done so. The applicant was handed her son’s organs only after two interventions by the Patients’ Ombudsperson. This was not disputed by the Government, either. 118. In sum, the Court considers that the behaviour of the hospital staff towards the applicant clearly lacked the diligence and prudence required by the situation. It finds (as did the Feldkirch Regional Court, as the court that examined the matter at first instance – see paragraph 29 above) that the hospital staff should have informed the applicant and her husband of the extent of their son’s post-mortem. This information was important to them, in particular for religious reasons, as it was crucial to the planning of the burial ceremony, of which they had informed the hospital very early (see paragraph 7 above). 119. The Court furthermore notes that while the expert opinions unanimously found that the post-mortem had been justified in order to be able to clarify the diagnosis, nothing therein mentioned any necessity to keep the organs for scientific or other reasons for several weeks or months (see paragraphs 18 and 19 above). The Court considers that in the specific circumstances of the case, where the applicant had informed the hospital that her son´s body should remain as unscathed as possible for the funeral (see paragraph 7 above), it was the hospital’s duty to inform the applicant without undue delay of the removal and the whereabouts of her son’s organs. 120. The foregoing considerations are sufficient to enable the Court to conclude that, in the specific circumstances of the case, there has been a violation of Article 8 of the Convention on account of the hospital omitting to provide the applicant with sufficient information on the extent of her son’s post-mortem, and of the removal and whereabouts of his organs. ALLEGED VIOLATION OF ARTICLE 13 READ IN CONJUNCTION WITH ARTICLES 8 AND 9 OF THE CONVENTION 121. The applicant complained under Article 13, read in conjunction with Articles 8 and 9 of the Convention, that there been no legal remedy at her disposal by which to challenge the performance of the post-mortem examination before it took place. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 122. The Government submitted that the applicant had not raised that complaint before the domestic courts. They therefore considered the complaint to be inadmissible for non-exhaustion of domestic remedies. 123. The applicant did not comment on the admissibility of the complaint. 124. The Court reiterates that it is incumbent on the Government pleading non-exhaustion to satisfy it that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success ( Molla Sali v. Greece [GC], no. 20452/14, § 89, 19 December 2018, with further references). It notes that the Government have not specified which remedy the applicant should have used to raise this complaint, or why such remedy would have been effective in the circumstances. It therefore dismisses the Government’s objection as to the alleged non-exhaustion of domestic remedies. 125. The Court furthermore notes that this complaint is closely linked to the one examined above regarding the post-mortem and must therefore likewise be declared admissible. 126. However, having regard to its finding in relation to Articles 8 and 9 (see paragraphs 80-91 above), the Court does not consider it necessary to examine separately whether, in this case, there has been a violation of Article 13 (see, mutatis mutandis, the above-cited cases of Elberte, § 147, and Solska and Rybicka, § 131). APPLICATION OF ARTICLE 41 OF THE CONVENTION 127. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 128. The applicant claimed EUR 8,500 in respect of pecuniary damage (namely, the fee that she had had to pay for the halted burial ceremony in Turkey). Under the head of non-pecuniary damage, she claimed 50,000 euros (EUR) for the stress and frustration that she had suffered as a result of the violation of the Convention. In addition, she claimed EUR 25,800 in respect of “future non-pecuniary damage”. 129. The Government considered those claims to be excessive. They submitted that the applicant had not itemised her claims in respect of pecuniary damage or submitted any bills as evidence that those costs had actually been incurred. 130. According to Rule 60 of the Rules of Court, an applicant must submit itemised particulars of his claims, supported by relevant documents, failing which the Court may reject the claims in whole or in part. It therefore rejects the applicant’s claim for pecuniary damage. On the other hand, the Court accepts that the applicant has suffered considerable distress on account of the violations found. It therefore awards the applicant EUR 10,000 in respect of non-pecuniary damage. Costs and expenses 131. The applicant also claimed EUR 89,660.42 for the costs and expenses incurred before the domestic courts (comprising EUR 32,796.92, which she had had to pay to the opposing party for its legal fees, and EUR 56,863.50 for her own legal representation as well as court fees), and EUR 20,000 for legal fees that she had incurred in respect of proceedings before the Court. 132. The Government pointed out that the applicant had failed to submit a detailed itemisation of her claims in respect of costs and expenses. 133. Regard being had to Rule 60 of the Rules of Court (see paragraph 130 above) and the documents in its possession, the Court grants the applicant EUR 32,796.92, which she had to pay in legal fees to the opposing party at the domestic level, but rejects the claim for the costs and expenses sustained at the domestic level for her own legal representation, as the applicant has failed to adduce itemised bills thereof. Moreover, it considers it reasonable to award EUR 5,000 for the proceedings before the Court. In total, the Court therefore awards the applicant EUR 37,796.92 in respect of costs and expenses and rejects the remainder of her respective claims. Default interest 134. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 9 (freedom of thought, conscience and religion) of the Convention, finding that, albeit the wide margin of appreciation afforded to the domestic authorities, in the instant case they had not struck a fair balance between the competing interests at stake by reconciling the requirements of public health to the highest possible degree with the right to respect for private and family life nor had they weighed the applicant’s interest in burying her son in accordance with her religious beliefs in the balance. The Court also held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the behaviour of the hospital staff towards the applicant had clearly lacked the diligence and prudence required by the situation. In addition, whereas the expert opinions had unanimously found that the post-mortem had been justified in order to be able to clarify the diagnosis, nothing therein mentioned any necessity to keep the organs for scientific or other reasons for several weeks or months. |
336 | Demonstrators | RELEVANT LEGAL FRAMEWORK 38. The Criminal Code of 1999, as it read at the material time, recognised discrimination based, among other grounds, on religion, as an aggravating circumstance in the commission of a criminal offence (Article 53). Under the Code, the exceeding of official powers resulting in a substantial violation of individuals’ rights (Article 333) and violent resistance towards police officers while the latter engaged in activities aimed at the upholding of public order (Article 353) were both criminal offences. 39. Articles 370-71 of the Criminal Code provided for criminal liability in respect of witnesses who gave false testimony or refused to testify. Article 371 1 provided a sanction of one to three years’ imprisonment for “obstruction of justice” where such obstruction consisted of giving essentially contradictory statements. 40. Article 166 of the Code of Administrative Offences of 1984 defined minor hooliganism as “swearing and cursing in a public place, [causing] insulting harassment to a person, or other similar actions which disturb public order and peace.” It was punishable by a fine and/or up to fifteen days’ administrative detention. Article 173 of the Code provided that “disobeying a lawful instruction or order [issued by] a law enforcement officer ... or insulting the latter” was punishable by a fine of minimum 250 and maximum 2,000 Georgian laris (GEL) or fifteen days’ administrative detention. 41. Ministerial order no. 34 issued by the Minister of Justice on 7 July 2013 regulated questions regarding investigative jurisdiction in criminal cases. The order, as in force at the material time, provided that an investigation into an offence possibly committed by, inter alia, a police officer, was to be entrusted to a prosecutor. OTHER RELEVANT MATERIAL 42. A report by the Public Defender of Georgia (საქართველოს სახალხო დამცველი ) entitled “The Situation Regarding the Protection of Human Rights and Freedoms in Georgia in 2015” referred to the incident in the village of Mokhe and noted that “the representatives of the Public Defender’s office [had] acquainted themselves with the reports on the physical examination on 22 October 2014 of the arrested protesters; [those reports had] confirmed [the presence of] signs of physical injury.” The Public Defender’s report furthermore expressed a general concern regarding the lack of “timely, adequate and effective responses to offences [allegedly] committed on the basis of religious intolerance and hatred ...” 43. In 2015 Human Rights Watch published its World Report for the year 2014. The relevant excerpt from that report reads as follows: “In October, police used disproportionate force to break up a protest in a small village and detain 14 participants demonstrating against the government’s plans to rebuild a former mosque as a library. Courts fined 11 of them GEL 250 (roughly $140) each for petty hooliganism and disobeying police orders. Authorities did not effectively investigate police conduct.” THE LAW ALLEGED VIOLATION OF ARTICLES 3 AND 14 OF THE CONVENTION 44. Relying on Article 3 of the Convention, both alone and in conjunction with Article 14 of the Convention, the applicants complained that they had been physically and verbally assaulted by police officers during their arrests and/or detention; those assaults had been motivated by the authorities’ discriminatory attitudes towards the applicants’ religion, and the ongoing criminal investigation into the related complaints had been ineffective. The cited provisions read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” AdmissibilitySubmissions by the parties Submissions by the parties Submissions by the parties (a) The Government 45. The Government submitted that the treatment complained of had not reached the minimum level of severity necessary to attract the application of Article 3 of the Convention: namely, the injuries sustained by the first applicant had been minor and had been acquired as a result of his resistance during arrest. As regards the remaining three applicants, despite allegations of physical ill-treatment, no evidence regarding the presence of any injuries had been presented, and their account had been inconsistent. 46. The Government furthermore stated that the applicants had failed to lodge their application with due expedition, as required by Article 35 § 1 of the Convention. 47. As regards the alleged discriminatory attitudes of the authorities, the Government stated that the applicants had failed to exhaust the relevant domestic remedies, given that they had failed to lodge a complaint with the Public Defender of Georgia and/or to institute civil proceedings for damages. (b) The applicants 48. The applicants submitted that the minimum level of severity had been attained in the present case, emphasising that all of them had felt humiliation on account of the police officers’ use of excessive force during their arrests, their use of discriminatory slurs on account of the applicants’ religion, and the atmosphere of fear and intimidation at the police station. The second, third, and fourth applicants added that the absence of physical injuries on their bodies could not be taken to indicate the absence of suffering. 49. The applicants furthermore submitted that given the authorities’ constant reassurances that the investigation in their case had been ongoing, they could not be reproached for attempting to avail themselves of that remedy before lodging their complaints with the Court. 50. As regards the exhaustion of additional remedies in so far as their complaint concerning the discriminatory attitudes of the authorities was concerned, the applicants submitted that the criminal investigation into the relevant events had constituted an adequate and sufficient remedy. The Court’s assessment 51. In so far as the objection regarding the applicants’ diligence in lodging their complaints is concerned, the Court takes note of the Government’s submission on the merits that the criminal investigation – whose outcome the applicants awaited before submitting the present application – had been effective within the meaning of the procedural aspect of Article 3 of the Convention (see paragraph 56 below). The Court has already addressed a similar objection in another case against Georgia, finding it inconsistent and holding that the applicants in that case could not be reproached for attempting to duly exhaust a remedy that could not be seen as inherently ineffective (see Gablishvili and Others v. Georgia, no. 7088/11, §§ 48-51, 21 February 2019, with further references). There is no reason to reach a different conclusion in the present case. Accordingly, and having regard to the developments in the investigation (see paragraphs 25 and 33-34), the Government’s objection should be dismissed. 52. As regards the objection relating to the applicants’ alleged failure to exhaust remedies in respect of their complaints concerning discriminatory treatment at the hands of the police, the Court notes that the national authorities were expected, as part of the criminal investigation into the applicants’ complaints, to look into any possible discriminatory motives behind the alleged ill-treatment (see, among other authorities, Begheluri v. Georgia, no. 28490/02, § 141, 7 October 2014). Therefore, the applicants were not obliged to pursue another remedy (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 177, 25 June 2019). Accordingly, the Court rejects the objection without assessing whether any additional effective remedies existed in respect of the relevant complaints. 53. Finally, the Court considers that the question of whether ill ‑ treatment, as described by the applicants, was perpetrated against them and attracted the application of Article 3 of the Convention is, in the particular circumstances of the present case, to be assessed on the merits of their complaints under the said provision. 54. The Court, therefore, concludes that this part of the application, concerning the complaints summarised in paragraph 44 above, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. MeritsSubmissions by the parties Submissions by the parties Submissions by the parties 55. The applicants reiterated their submissions summarised in paragraph 48 above. In addition to maintaining their account as submitted at domestic level (see paragraphs 22, 24, 28 and 32 above), the applicants made the following remarks: (1) the first applicant specified that he had been beaten at the police station by “approximately 4-8 police officers (two of whom had also beaten him at the protest)”; (2) the second applicant stated that a seatbelt had been twisted around his neck in the police car; and (3) the third applicant stated that police officers were beating him “for about 10 minutes” before arresting him, and that he had been forced to stand facing the wall for two hours at the police station. The first, the second and the third applicants also submitted reports made on 8 September 2016 – two days prior to lodging the present application – by individuals apparently working as psychiatrists at a non-governmental organisation. The documents restated the mentioned applicants’ account to conclude that the events of 22 October 2014, as described by them, had caused them psychological suffering. 56. In addition to their submissions summarised in paragraph 45 above, the Government stated that the applicants’ account had evolved at domestic level and before the Court to the point that the complaint had become inconsistent. They furthermore emphasised that they had fully discharged their obligations under the procedural aspect of Article 3 of the Convention. In particular, despite a certain delay in the opening of a separate criminal investigation into the applicants’ complaints, their allegations of ill ‑ treatment had been duly addressed by the investigative authorities in charge of the criminal case against them, and a prosecutor had subsequently carried out all the relevant investigative measures anew. The Court’s assessment (a) Scope of the case 57. In view of the allegation of police ill-treatment supposedly motivated by religious intolerance and the related complaint that the criminal investigation did not adequately address this element, the Court will subject the applicants’ complaints to an examination under Article 3 taken in conjunction with Article 14 of the Convention. Furthermore, the Court considers it appropriate to start its examination of the merits of the application by first addressing the complaint about the inadequacy of the investigation and then turning to the question of whether the State can be held responsible for the alleged ill-treatment. (b) Alleged inadequacy of the investigation (i) General principles 58. Where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see El ‑ Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 182, ECHR 2012). In order to be “effective”, such an investigation must firstly be adequate, which means that it must be capable of leading to the establishment of the facts and to a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible (see Jeronovičs v. Latvia [GC], no. 44898/10, § 103, 5 July 2016). It must also be sufficiently thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill‑founded conclusions to close their investigation or as the basis of their decisions (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 325, ECHR 2014 (extracts)). Any deficiency in the investigation that undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see El ‑ Masri, cited above, § 183, and Bouyid v. Belgium [GC], no. 23380/09, § 120, ECHR 2015). A requirement of promptness and reasonable expedition is implicit in this context (see Bouyid, cited above, § 121). 59. Furthermore, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence (ibid., § 118). Lastly, the victim should be able to participate effectively in the investigation in one form or another (see El ‑ Masri, cited above, §§ 184-85). 60. When investigating alleged incidents of violence, such as ill‑treatment, State authorities have the duty to take all reasonable steps to unmask possible discriminatory motives, which the Court concedes is a difficult task. The respondent State’s obligation to investigate possible discriminatory motives for a violent act is an obligation to use its best endeavours, and is not absolute. The authorities must do whatever is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of violence induced by, for instance, racial or religious intolerance, or violence motivated by gender ‑ based discrimination (see, among other authorities, Identoba and Others v. Georgia, no. 73235/12, § 67, 12 May 2015, with further references). Treating violence and brutality with a discriminatory intent on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in respect of the way in which essentially different situations are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see, for instance, Begheluri, cited above, § 173, and Sabalić v. Croatia, no. 50231/13, § 94, 14 January 2021). (ii) Application of those principles to the present case 61. The Court observes that the applicants’ complaints concerned their arrest near the disputed building and also their initial detention at the police station. The first three applicants lodged their related complaints with the prosecution authorities on 5 November 2014 – slightly less than two weeks after the events (see paragraph 22 above). As regards the fourth applicant, he appears to have complained of ill-treatment, without success, during the administrative-offence proceedings opened against him on the day following the disputed events (see paragraph 17 above); he later (on 17 December 2014) joined the proceedings concerning the complaints lodged by the first three applicants (see paragraph 28 above). 62. While the first applicant’s complaints were supported by medical evidence indicating the presence of physical injuries (see paragraphs 12-14 above), and the second applicant’s medical documentation recorded that he had felt unwell during his detention (see paragraph 15 above), the remaining two applicants did not present signs of injuries (see paragraph 16 above). The Court takes note of the reports made on 8 September 2016, almost two years following the events complained of and just two days before the present application was lodged (see paragraph 55 above). These reports merely repeated the applicants’ account and were not, at any rate, submitted to any domestic authorities. The Court cannot, therefore, afford any probative value to such documents. However, in so far as the relevant complaints relate not only to the circumstances of the applicants’ arrest but also to their detention at the police station and the alleged continued use by the police officers of religiously motivated derogatory insults (see paragraphs 8, 24 and 28-29 above) and the alleged physical ill-treatment of the first applicant at that station, supposedly creating an atmosphere of intimidation and fear while all four applicants were under the full control of the authorities, such complaints were, at least in part, supported by witness statements (see paragraphs 22 and 29-30 above). Considering that Article 3 is not limited to acts of physical ill-treatment but also covers the infliction of psychological suffering (see, among other authorities, Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, § 42, 8 October 2020, with further references), such circumstances might have reached the threshold of severity under Article 3 of the Convention. The applicants’ allegations therefore amounted, cumulatively, and in the circumstances of the present case, to an arguable claim of ill‑treatment triggering the procedural obligation under Article 3 of the Convention, taken alone and in conjunction with Article 14 of the Convention, for the authorities to conduct an effective investigation. 63. As regards whether the investigation was actually effective, the Court notes that the authorities took the first indispensable step, recording the applicants’ state of health when in detention (see paragraphs 12-16 above). 64. As for the next steps, the Court first notes that the undisputed presence of injuries on the first applicant’s body was sufficient to trigger the domestic authorities’ obligation to investigate, of their own motion, the origin of such injuries (see Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 97, 3 May 2007). Even accepting that the first applicant’s alleged refusal to undergo a medical examination or cooperate with the authorities (see paragraph 12 above) may have created an initial difficulty, the authorities’ obligation to carry out an effective criminal investigation into the allegations of ill ‑ treatment was triggered, at the latest, at the moment when the first three applicants submitted, on 5 November 2014, their complaints, requesting that an investigation be carried out by an institutionally independent prosecutor (see paragraph 22 above). 65. In so far as the Government allege that the investigation against the first three applicants, which started immediately (see paragraph 18 above), constituted an effective forum for their complaints of ill-treatment, the Court notes that it was being conducted by staff at the very same police station against which the applicants’ complaint was made. Such an investigation was neither institutionally, nor practically, independent (see the above-cited cases of El ‑ Masri, § 184, and Bouyid, § 118). What is more, despite the domestic regulation providing that an investigation into an offence possibly committed by, inter alia, a police officer, was to be entrusted to the relevant prosecutor (see paragraph 41 above), it was the investigators of the Adigeni police station who questioned the individuals whom the applicants had designated as eyewitnesses to their alleged ill-treatment (see paragraph 23 above). These witnesses, the majority of whom were themselves charged as part of the administrative-offence proceedings (see paragraph 17 above), were questioned without the presence of their lawyers. They retracted the signed statements given by them earlier and obtained by the applicants’ representatives and were threatened with criminal prosecution for any future alteration of their account (see paragraphs 22-23 and 39 above). The implementation of such an important investigative measure by authorities who did not, in the slightest, satisfy the requirement of independence was a step that undermined the effectiveness of any subsequent independent criminal investigation into the first three applicants’ complaints. 66. The Court furthermore observes that the substantive as well as the personal scope of the criminal investigation into all applicants’ complaints remained limited even after December 2014, when a separate investigation was opened by a prosecutor and the fourth applicant lodged his complaint (see paragraphs 27-28 above): it does not appear to have addressed the episode involving their arrest or the second, third, and fourth applicants’ allegations (see, for instance, paragraphs 35-36 above). Additionally, the material available to the Court demonstrates that after August 2015 there was a lengthy period of inactivity and that the investigation was resumed in 2021, at a time when it would be more difficult to collect all evidence as with the lapse of time the prospects that an effective investigation can be undertaken will increasingly diminish (see paragraphs 34-35 above; see also, mutatis mutandis, Zubkova v. Ukraine, no. 36660/08, § 41, 17 October 2013, in fine ). 67. The Court also observes that despite the applicants’ repeated complaints concerning the police use of derogatory language both during their arrest and at the police station, and the fact that the domestic legislation provided that discrimination on the grounds of religion should be treated as a bias motive and an aggravating circumstance in the commission of an offence (see paragraph 38 above), the criminal investigation failed to address such allegations. The prosecutor’s decision of 2021 to charge the police officers implicated in the events emphasised the physical element of the alleged violence, disregarding altogether the complaints of derogatory language used by the police and of the related psychological suffering made both by the first applicant and by some of the witnesses on whose account the prosecutor appears to have relied (see paragraphs 35-36 above). Accordingly, the national authorities failed in their duty to take all reasonable steps to investigate any possible religious motive and to establish whether or not religious prejudice may have played a role in the events complained of, as required under the Convention (see paragraph 60 above). 68. Lastly, to date – that is to say almost seven years after its opening –the investigation into the alleged police abuse has not produced any conclusive findings. Such a prohibitive delay, for which no explanation has been provided, is in itself incompatible with the State’s obligation under Article 3 of the Convention to carry out an effective investigation (see Goguadze v. Georgia [Committee], no. 40009/12, § 52, 27 June 2019; Gogaladze v. Georgia, no. 8971/10, § 54, 18 July 2019; and Aghdgomelashvili and Japaridze, cited above, § 39). As the Court has emphasised on previous occasions, although there may be obstacles or difficulties that prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill ‑ treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Bouyid, cited above, § 133, and Kekelidze v. Georgia [Committee], no. 2316/09, § 31, 17 January 2019). In this regard, the Court reiterates that justice delayed is often justice denied, as the existence of unreasonable periods of inactivity and a lack of diligence on the authorities’ part in conducting the proceedings renders the investigation ineffective, irrespective of its final outcome (see, mutatis mutandis, Shavadze v. Georgia, no. 72080/12, § 36, 19 November 2020; see also X and Others v. Bulgaria [GC], no. 22457/16, § 188, 2 February 2021). 69. In the light of the foregoing, the Court finds that there has been a violation of Article 3 under its procedural limb, taken alone and in conjunction with Article 14 of the Convention, in respect of all four applicants. (c) Alleged ill-treatment (i) General principles 70. The relevant general principles are summarised in the case of Bouyid (cited above, §§ 81‑90) and Yusiv v. Lithuania (no. 55894/13, §§ 53-56, 4 October 2016). Principles applicable in the context of conflicting accounts of events have been summarised in the cases of Creangă v. Romania ([GC], no. 29226/03, §§ 88-89, 23 February 2012) and El-Masri (cited above, §§ 151-52). (ii) Application of those principles to the present case 71. Turning to the circumstances of the present case, the Court observes that the applicants’ allegations are contested by the Government on all accounts, furthermore noting their alleged inconsistency (see paragraphs 45 and 56 above). 72. The Court agrees that inconsistencies and changing versions of events may lead to the conclusion that the assertions made are not reliable. In the present case the applicants’ accounts, which were given at different points in time, displayed some variations as to the duration and specifics of the alleged ill-treatment. Notably, the first applicant did not maintain his initial submission regarding the presence of a third policeman in the room in which he had allegedly been ill-treated (compare paragraphs 24 and 32 above); the second applicant first mentioned in November 2014 having been insulted in the police car by B.A. on account of his religion and having been unable to breath due to the allegedly excessive force used to restrain him (compare paragraphs 22 and 24 above); the third applicant’s statement of January 2015 described the alleged physical ill-treatment as having been slapped rather than beaten in the car (compare paragraphs 24 and 32 above ); and the fourth applicant initially complained of alleged ill-treatment lasting one minute, whereas he later mentioned it must have been two or three minutes (compare paragraphs 28 and 32 above). Additionally, in the submissions before the Court the first applicant noted that more than two officers had been involved in his alleged ill-treatment at the police station, the second applicant mentioned having had a seatbelt twisted around his neck in the police car, and the third applicant stated that his alleged ill-treatment had lasted ten minutes, adding that he had been forced to stand facing the wall for two hours at the police station (see paragraph 55 above). Having carefully examined those variations, the Court does not consider that they were of such nature as to undermine the general consistency and main thrust of the applicants’ complaints about the use of excessive force and discriminatory language by the police during the arrests and at the police station. 73. As concerns the first applicant’s complaints of physical ill-treatment, they were supported by evidence showing signs of injuries (see paragraphs 12-14 above). Even if these injuries were considered to have been of a “minor” nature (see paragraph 33 above), it is undisputed that the first applicant must have received them at some point during his contact with the authorities – either during his arrest or subsequently at the police station (see paragraphs 35-36 and 45 above). The burden was therefore on the authorities to provide a plausible explanation in that regard. 74. While the Government’s explanation suggests that the first applicant was injured as a result of resisting police officers (see paragraphs 45 and 56 above), apparently implying that the police had used necessary physical force to restrain and/or put the first applicant’s arrest into effect, it was incumbent on the investigation authorities to establish the mechanism of infliction of such injuries and/or the restraining technique and force used that led to the injuries, if indeed their cause was force used to arrest the first applicant and to overcome his resistance to arrest, as alleged by the Government. Although there is evidence that a police car was damaged during events leading to the first applicant’s arrest, no injuries appear to have been inflicted on any of the officers who arrested him (see paragraphs 20-21 above; compare and contrast Iljina and Sarulienė v. Lithuania, no. 32293/05, § 50, 15 March 2011 in fine, and Gablishvili and Others cited above, §§ 62-63). Nor has the criminal investigation into the alleged resistance towards police officers reached any conclusion on this account (see paragraph 26 above; also contrast Spinov v. Ukraine, no. 34331/03, §§ 49-51, 27 November 2008). 75. In such circumstances, the Court considers that the Government have not satisfactorily explained the source of the first applicant’s injuries and, therefore, have not shown that the use of force against the first applicant was lawful and strictly necessary and that his injuries were caused otherwise than by ill-treatment by the police (see Sadkov v. Ukraine, no. 21987/05, § 101, 6 July 2017; see also Yusiv, cited above, § 59, and Mikiashvili v. Georgia, no. 18996/06, § 76, 9 October 2012). Accordingly, the Court finds that there has been a violation of the substantive aspect of Article 3 of the Convention in respect of the injuries inflicted on the first applicant. 76. However, in so far the first applicant’s complaint concerning the use of discriminatory language by the police is concerned, some witnesses denied that this happened during the arrest (see paragraph 19 above), while others confirmed it had (see paragraph 34 above). Similarly, several witnesses noted that discriminatory slurs had been uttered at the police station (see paragraphs 29-30 above), yet others flatly denied this (see paragraph 31 above). While the Court has found that the domestic authorities’ failure to address this complaint, which was at least arguable, was in breach of their procedural obligations under Article 3 taken in conjunction with Article 14 of the Convention (see paragraphs 66-69 above), the case-file does not enable the Court to accept that there is proof beyond a reasonable doubt of a discriminatory treatment by the police contrary to Article 14 read in conjunction with the substantive limb of Article 3 of the Convention. 77. As regards the remaining applicants and their allegations of physical ill-treatment, the Court observes that no medical evidence demonstrating presence of injuries was submitted, and the witness evidence relevant to their allegations contained a conflicting account (compare, for instance, paragraphs 19, 29-31 and 34 above). Additionally, as concerns the alleged use of discriminatory language by the police, and the complaint that the three applicants witnessed the first applicant’s ill-treatment at the police station, the Court considers that the evidence available to it is insufficient to establish beyond a reasonable doubt that such treatment was inflicted on the three applicants in the circumstances described by them (see paragraphs 73 ‑ 76 above). It is necessary to emphasise, however, that the Court’s inability to reach a conclusion as to whether the three applicants’ treatment during their arrest and subsequent detention at the police station was contrary to Article 3 – either taken alone or in conjunction with Article 14 of the Convention – derives considerably from the failure of the domestic authorities to effectively investigate the relevant allegations, which – as the Court has already found above – was in breach of their procedural obligations under those provisions (see paragraphs 61-69 above). 78. In view of the foregoing, the Court concludes that, as far as the substantive limb of Article 3 of the Convention is concerned, there has been a violation of that provision, taken alone, in respect of the first applicant and no violation of that provision, either taken alone or in conjunction with Article 14 of the Convention, in respect of the remaining three applicants. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 79. Relying on the same facts, the applicants furthermore submitted that they had suffered a breach of their rights under Articles 8, 11, and 13 of the Convention. 80. However, having regard to the facts of the case, the submissions of the parties and the findings in respect of Articles 3 and 14 of the Convention (see paragraphs 56-78 above), the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the admissibility and merits of the remaining complaints (see, among other authorities, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references). APPLICATION OF ARTICLE 41 OF THE CONVENTION 81. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 82. The fourth applicant claimed 110 euros (EUR) in respect of pecuniary damage arising out of a fine imposed on him in the administrative-offence proceedings. As regards non-pecuniary damage, all four applicants requested that the Court determine its amount. 83. The Government submitted that there were no grounds to make the award. 84. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. By contrast, having regard to the nature of the violations found, and ruling on an equitable basis, it awards in respect of non-pecuniary damage, the first applicant EUR 3,900, plus any tax that may be chargeable, and the remaining applicants EUR 1,800 each, plus any tax that may be chargeable. Costs and expenses 85. The applicants claimed 8,775 pounds sterling (GBP) in respect of the costs of their representation before the Court by two of their lawyers, who are based in London (see paragraph 2 above), submitting, in support of that request, time sheets prepared by those lawyers on 10 April 2017. The applicants additionally claimed GBP 210.70 in respect of various administrative expenses and GBP 2,801.6, EUR 269.82, and 3,053.61 United States Dollars (USD) for translation costs incurred by the same lawyers. In that regard, they submitted copies of invoices signed by the translators. 86. The Government submitted that the claims were unsubstantiated and excessive. 87. The Court notes that a representative’s fees are actually incurred if the applicant has paid them or is liable to pay them. Accordingly, the fees of a representative who has acted free of charge are not actually incurred. The opposite is the case with respect to the fees of a representative who, without waiving them, has simply taken no steps to pursue their payment or has deferred it. The fees payable to a representative under a conditional‑fee agreement are actually incurred only if that agreement is enforceable in the respective jurisdiction (see Merabishvili v. Georgia [GC], no. 72508/13, § 371, 28 November 2017). In the present case, the applicants did not submit documents showing that they had paid or were under a legal obligation to pay the fees charged by their British representatives or the expenses incurred by them. In the absence of such documents, the Court finds no basis on which to accept that the costs and expenses claimed by the applicants have actually been incurred (ibid., §§ 361-62, 364-65 and 372 ‑ 73; see also Vazagashvili and Shanava v. Georgia, no. 50375/07, §§ 105-108, 18 July 2019, and Aghdgomelashvili and Japaridze, cited above, § 61). 88. It follows that the claim must be rejected. Default interest 89. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment), taken alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention in respect of all applicants, and a violation of the substantive aspect of Article 3 in respect of the first applicant. It held, however, that there had been no violation of Article 14 taken in conjunction with the substantive aspect of Article 3 in respect of the first applicant, and no violation of the substantive aspect of Article 3 either taken alone or in conjunction with Article 14 in respect of the three other applicants. The Court found, in particular, that the Georgian Government had not satisfactorily explained the source of the first applicant’s injuries and, therefore, had not shown that the use of force against him had been lawful and strictly necessary and that his injuries had been caused otherwise than by ill-treatment by the police. As regards the remaining applicants and their allegations of physical ill-treatment, it observed, in particular, that no medical evidence demonstrating presence of injuries had been submitted. |
759 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic LAwThe Constitution The Constitution The Constitution 34. The relevant provisions of the 1991 Constitution read as follows: Article 55 “Citizens shall have the right to a healthy and favourable environment corresponding to the established standards and norms. They must preserve the environment.” Article 120 “1. The courts shall review the lawfulness of the administrative authorities’ acts and decisions. 2. Natural and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.” Registration of associations 35. Before the entry into force of the 2000 Act on 1 January 2001 the formation, registration, organisation, activities and winding-up of non ‑ profit legal persons such as associations and foundations was regulated by the Persons and Family Act 1949. An association acquired legal personality after its entry in the register kept by the relevant regional court. 36. The 2000 Act (see paragraph 6 above), which superseded parts of the 1949 Persons and Family Act, provided for two categories of associations – those registered for the public benefit and those working for a private interest. Under paragraph 1 of the transitional and concluding provisions of the 2000 Act, non-profit legal persons which were registered under the previous regime retained their legal personality without being required to apply for new registration under the 2000 Act. Non-profit legal persons wishing to be designated as acting for the public benefit, a status which could give some tax advantages, had to submit an application for registration in the central register kept by the Ministry of Justice within three years from the entry into force of the 2000 Act. The status of non ‑ profit legal person working for the public benefit was to be acquired from the date of registration. 37. If a non-profit legal person carried out activities in breach of the Constitution, the law and morals, it could be wound up by a decision of the regional court with territorial jurisdiction (section 13, subsection 3(b) of the 2002 Act). Proceedings under the Environmental Protection Act 2002 38. At the material time, the provisions of the 2002 EPA provided that an environmental impact assessment was mandatory for all the schemes listed in a schedule to the Act (section 92, point 1). In other cases, an environmental impact assessment could be carried out after the competent authorities assessed the necessity for that (section 93(1)). In particular, in relation to investment proposals and their extension or amendment concerning sites designated by an act of the Council of Ministers as being of national importance, like the KNPP, the 2002 EPA provided that the assessment of the necessity was to be carried out by the Minister for the Environment and Water (section 93(2), point 4, and section 94(1), point 5). The Minister was to decide within one month from the submission of the investment proposal whether or not to carry out an environmental impact assessment. The Minister’s decision was an individual administrative act (paragraph 1, point 30 of the supplementing provisions), which had to be notified to the investor and made public. The persons concerned could seek judicial review before the SAC within fourteen days from notification of the decision (section 99(6)). 39. The right of public participation in decision-making and the right of access to justice in environmental matters are recognised by section 3, subsections 4 and 11 of the EPA. 40. Section 1, subsection 24 of the supplementing provisions defines “members of the public” as one or more natural or legal persons and their associations, organisations or groups established in accordance with the national law. Subsection 25 defines “the members of the public concerned” as the members of the public under subsection 24, including environmental non-governmental organisations established in accordance with the national legislation which are affected or are likely to be affected, or which have an interest in proceedings for the approval of plans, programmes and investment proposals, and in decisions on the issuance or updating of permits under the 2002 EPA or on the conditions laid down in such permits. Costs in judicial review proceedings 41. Article 143 of the Code of Administrative Procedure 2006 (“the 2006 Code”) lays down a general cost-shifting rule in judicial review proceedings, namely that costs follow the event. According to the first paragraph of Article 143, if a court quashes an administrative decision or a public authority’s refusal to issue one, the costs of the litigation – court fees, the fees of one lawyer, and other expenses – must be borne by that authority. If, on the other hand, the court dismisses the claim for judicial review or the party which has brought it withdraws it, that party must bear all costs incurred in relation to the proceedings, including the minimum remuneration for one lawyer, determined in accordance with the regulation adopted under section 36(2) of the Bar Act 2004 (Article 143 § 4). In the latter case, the party in whose favour the administrative decision is given is also entitled to costs (Article 143 § 3). 42. Under Article 144 of the 2006 Code, all matters not specifically dealt with in the part of the Code governing judicial review are governed by the Code of Civil Procedure. 43. Article 78 § 1 of the Code of Civil Procedure 2007 provides that the expenses paid by the claimant – litigation costs and the fees of one lawyer – must be borne by the defendant in proportion to the part of the claim which was upheld. If the lawyer’s fees paid by a party are excessively high having regard to the legal and factual complexity of the case, the court may order the payment of a lower amount in respect of costs at the request of the opposing party, provided that the amount does not fall below the minimum amount set out in the Regulation on the minimum amounts of lawyers’ fees (Article 78 § 5). 44. According to the case-law of the domestic courts, in cases where there are no grounds to reduce the amount of the costs awarded to the winning party’s legal representation, the court may order the payment of the entire amount paid by the party and is not obliged to adhere to the minimum amounts laid down in the Regulation (тълк. решение № 3 от 13.05.2010 г. по тълк. д. № 5/2009 г., ОСК на ВАС). Other relevant provisions of the 2006 Code 45. Under the 2006 Code individual administrative acts may be challenged before a court, on grounds of unlawfulness, by the persons affected by them, within fourteen days from notification (Articles 145 § 1, 147 § 1 and 149 § 1). 46. General administrative acts may be challenged within one month from notification or within fourteen days from the individual notification of the act to the persons who participated in the proceedings before the administrative body (Article 179). Anyone with a legal interest may join the judicial review challenge or intervene as a party alongside the administrative body, until the beginning of the oral pleadings (Article 182 § 3). 47. The reopening of administrative judicial proceedings is permissible on the grounds that a party was deprived of the opportunity to participate in the proceedings as a result of a breach of the statutory rules or was not duly represented, or where the party was unable to appear in person to or be represented owing to an obstacle which it was unable to remove (Article 239 § 5). 48. Administrative judicial proceedings may be reopened on a number of additional grounds such as the discovery of new evidence or a finding that a witness made false statements, or a document was forged (Article 239). The Bar Act 2004 49. Section 36 of the Bar Act 2004 provides that the lawyer is entitled to remuneration for his or her work (subsection 1). The amount of the fees is to be determined by an agreement between the lawyer and the client. That amount must be fair and justified and may not be lower than the amount provided for in the Regulation issued by the Supreme Bar Council for the type of service concerned (subsection 2). The negotiation between the lawyer and his client of an amount lower than the fees provided for in the Regulation for the type of service concerned constitutes a disciplinary offence and may entail disciplinary liability on the part of the lawyer (section 132(5)). Regulation on the minimum amounts of lawyers’ fees 50. The Regulation provides that the amount of remuneration for the lawyer’s legal assistance must be agreed freely on the basis of a written contract with the client but may not be lower than the minimum amount set forth by the Regulation for the corresponding service. 51. At the material time the minimum lawyer’s fee for legal representation and legal assistance in civil cases concerning claims not subject to pecuniary assessment ( неоценяеми искове), which was also applicable to the amount of remuneration for an in-house lawyer, was fixed at BGN 300 (approximately EUR 150; section 7(1), point 4). Under section 1 of the supplementing provisions, which provided that for non-regulated matters the remuneration was to be fixed by analogy, that amount was likewise applicable to legal representation in judicial review proceedings concerning claims not relating to a specific pecuniary interest. 52. The minimum fees applicable to a request for reopening of the proceedings were to be fixed at three-quarters of the minimum fees applicable to the main proceedings, but not less than BGN 300 (approximately EUR 150). If the lawyer had to attend a court hearing, the minimum fees could not be less than BGN 500 (approximately EUR 250; section 9(4)). 53. In a judgment of 2 May 2017 a five-judge panel of the SAC upheld the three-judge panel’s ruling setting aside parts of the Regulation concerning the minimum remunerations in civil cases regarding claims involving pecuniary interests on the ground that the amounts of the minimum remuneration adopted by the Supreme Bar Council were calculated solely by reference to the pecuniary interest of the case (решение № 9273 от 27.07.2016 г. на ВАС по адм. д. № 3002/2015 г., потвърдено с решение № 5485 от 2.05.2017 г. на ВАС по адм. д. № 1403/2017 г., 5 ‑ членен с-в). The SAC found that, to be fair and justified, the minimum lawyer’s fees had to be based on two objective criteria: (i) the volume and the complexity of the work performed by the lawyer, and (ii) the value of the protected interest involved in the case ( величината на защитавания интерес ). An increase in the minimum lawyer’s fees as a result of an increase in the minimum wage in the country failed to consider the first criterion and therefore contravened section 36 of the Bar Act. In the SAC’s view, the right of the self-governing Bar Association to itself determine the minimum fees for lawyers’ work had to be balanced against the public interest. Hence, on the one hand, the highly responsible work of lawyers was not to be underestimated and made dependent on market mechanisms; on the other hand, its value must not be set at an unjustifiably high level such as to impede citizens’ and legal entities’ access to qualified legal assistance or to be an instrument enabling one party or the other to exert economic pressure in the proceedings. According to the SAC, that would negatively affect the rule of law (решение № 9273 от 27.07.2016 г. на ВАС по адм. д. № 3002/2015 г.). 54. In several more recent judgments, the SAC confirmed its finding made in the judgment of 2 May 2017 (see paragraph 53 above) to the effect that the sums fixed in the Regulation were calculated only by reference to the pecuniary interest in the dispute and failed to take into consideration the actual volume and complexity of the work carried out by the lawyer. Accordingly, such fees could not be regarded as fair and justified as required by section 36(2) of the Bar Act. The courts were therefore called upon to assess the two above-mentioned criteria in each case so as not to allow unjust enrichment of the parties by awarding costs which were not fair and justified (see решение № 2800 от 26.02.2019 г. на ВАС по адм. д. № 5907/2018 г., решение № 2804 от 26.02.2019 г. на ВАС по адм. д. № 3781/2018 г., решение № 4408 от 14.04.2020 г. на ВАС по адм. д. № 7914/2019 г., решение № 5728 от 16.04.2019 г. на ВАС по адм. д. № 789/2018 г., решение № 3513 от 9.03.2020 г. на ВАС по адм. д. № 7400/2019 г.; решение № 5263 от 30.04.2020 г. на ВАС по адм. д. №15010/2018 г.). Average income in Bulgaria in 2017 55. According to the National Statistics Institute of the Republic of Bulgaria, in 2017 average total annual income per capita was BGN 5,586 (approximately EUR 2,793). Relevant international legal materialS 56. The United Nations Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“the Aarhus Convention”) was adopted on 25 June 1998 and came into force on 30 October 2001. Bulgaria ratified the Convention in 2003. The Convention entered into force with respect to Bulgaria on 16 March 2004. 57. The Aarhus Convention promotes public participation in decision ‑ making and access to justice concerning issues with an environmental impact. In particular, the relevant provisions which deal with access to justice in environmental matters may be found in Tătar v. Romania, no. 67021/01, 27 January 2009 and Austin v. the United Kingdom ((dec.), no. 39714/15, §§ 27-28, 12 September 2017). THE LAW ALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 1 to THE CONVENTION 58. The applicant association complained that the allegedly excessive amount of the costs that the SAC had ordered it to pay for the legal representation of the KNPP, the successful respondent party in proceedings for reopening, was in breach of its right to peaceful enjoyment of its possessions. It relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” AdmissibilityArguments by the parties Arguments by the parties Arguments by the parties (a) The Government 59. The Government submitted, in substance, that the complaint was incompatible ratione personae with the Convention since it was doubtful whether the applicant association had the legal personality to be considered a valid petitioner for the purposes of Article 34 of the Convention. They noted that the association had been refused entry in the register of non-profit legal persons acting for the public benefit (see paragraphs 7-9 and 36 above). There was no information about any public activities carried out by the applicant association beyond its participation in the impugned proceedings. The Government also referred to the fact that the applicant association’s registered address had been occupied by another organisation (see paragraph 32 above). In their view all these factors suggested that the applicant association had been wound up back in 2005. (b) The applicant association 60. The applicant association contested the Government’s submissions. It referred to the 2002 Act, which provided that non-profit legal persons registered under the previous law retained their legal personality under the 2002 Act (see paragraph 36 above). It also submitted that non-profit legal persons were wound up by the courts and that no such proceedings had ever been brought against it. The applicant association pointed out that it was one of the first environmental organisations in Bulgaria to have actively participated in a number of court cases concerning environmental matters. In support of that argument the applicant association submitted a list of cases in which it had participated before the domestic courts. The Court’s assessment 61. The Court observes that a legal entity “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention and the Protocols thereto” may submit an application to it, provided that it is a non-governmental organisation within the meaning of Article 34 of the Convention ( Radio France and Others v. France (dec.), no. 53984/00, § 26, ECHR 2003 ‑ X (extracts). The Government contested that the applicant association had the required legal personality to do so. The Court notes that the applicant association participated in the domestic proceedings and that its legal personality has never previously been disputed. Nor its entry in the register of non-profit legal persons acting for the public benefit has any relation to its existence as a legal entity. Based on the documents in the case file it is evident that it continues to exist as a legal person and to take part in various environment-related proceedings. The Government did not provide any evidence that the applicant association had been wound up or been the subject of winding-up proceedings. There is no indication that the applicant association does no longer exist as a legal entity. Nor is there any indication that the applicant association does not qualify as a “non-governmental organisation” within the meaning of Article 34 of the Convention. The Court therefore rejects the Government’s objection as to the incompatibility ratione personae of the application. 62. The Court further notes that the complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsArguments by the parties Arguments by the parties Arguments by the parties (a) The applicant association 63. The applicant association submitted that the costs award made against it by the SAC in the proceedings for reopening had amounted to an interference with its right to peaceful enjoyment of its possessions. While that interference had been based on the rules on the allocation of costs laid down in Article 143 of the 2006 Code (see paragraph 41 above) and had pursued a legitimate aim, it had failed to strike a fair balance between the general interest of society and the individual’s fundamental rights. In particular, the national legislation did not provide for sufficient flexibility with regard to the allocation of costs, since the courts could not carry out an individual assessment depending on the particular circumstances and the conduct of the parties. Instead, the costs were shifted to the losing party, without taking into consideration the nature of the proceedings, the public interest involved, the party’s financial situation and whether that party had acted in good faith. Even if the courts allowed an objection under Article 78 § 5 of the Code of Civil Procedure (see paragraph 43 above), their assessment was subjective as there were no criteria on which to evaluate whether the lawyer’s fees were excessive. Furthermore, the costs incurred for legal representation could not be lower than the minimum amounts provided for in the Regulation (see paragraph 50 above). When the pecuniary interest involved in the case was high, the minimum remuneration laid down for the lawyer’s fees could become unsustainable for the party that had lost the case. 64. The applicant association further argued that the KNPP had merely submitted a document showing that the fees due to the law office had been paid, but that it had been unclear how those fees had been calculated and what had been the value of the interest involved in the case. In comparison with the average total annual income of a Bulgarian citizen for 2017, which amounted to BGN 5,586 (approximately EUR 2,793; see paragraph 55 above), the amount of the costs award, even after its reduction by the court, had been excessive. The domestic court’s assessment had further fallen short by failing to consider that non-governmental organisations were called upon to exercise the functions of a public watchdog and to defend the public interest. As a result, the applicant association had suffered disproportionate interference with its rights under Article 1 of Protocol No. 1. (b) The Government 65. The Government questioned whether an order for costs to be paid by a private party amounted to an interference and could therefore engage the responsibility of the State under Article 1 of Protocol No. 1 to the Convention, since the present case did not concern court fees regulated by the State. They submitted that even though the KNPP was owned by the State (see paragraph 10 above), it was a private company and did not exercise public powers. Therefore, the present case had to be distinguished from cases in which the Court had found a violation of Article 1 of Protocol No. 1 in relation to court fees due to the State in civil cases. 66. If the costs order were to be regarded as an interference, the Government maintained that that interference had been lawful, had pursued a legitimate aim and had been proportionate to the aim in question. They pointed out that the “loser pays” principle was a general principle in litigation and was provided for in Article 143 § 3 of the 2006 Code. Those provisions were clear and predictable and the applicant association, which had been represented by a lawyer in the domestic proceedings, must have been familiar with them. They further argued that in the event of inadmissible or unfounded claims the award of costs pursued the legitimate aims, on the one hand, of discharging the winning party of the incurred costs and, on the other hand, of imposing discipline on individuals and legal entities on pain of bearing the costs, so that the judicial system was not overloaded with obviously inadmissible or unfounded claims. 67. The Government also submitted that the courts enjoyed discretion when awarding litigation costs. The objection under Article 78 § 5 of the Code of Civil Procedure, examined in the light of the factual and legal complexity of the case, and the possibility for the courts to reduce the amount to the minimum remuneration provided for in the Regulation, were the safeguards afforded to the unsuccessful party in the proceedings. The costs award was also limited to the fees for one lawyer. In the Government’s opinion, by allowing the applicant association’s objection and reducing the amount of the costs, the SAC had made a fair and proportionate costs award which had corresponded to the legal assistance provided to the KNPP and had compensated the nuclear power plant for the costs it had actually incurred. Lastly, the Government pointed out that there was no indication that the applicant association had actually paid in whole or in part the litigation costs that had been ordered. The Court’s assessment (a) Whether there was an interference 68. The Court reiterates that Article 1 of Protocol No. 1, which guarantees the right to the protection of property, contains three distinct rules: “the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest ... The three rules are not, however, ‘distinct’ in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule” (see Anheuser ‑ Busch Inc. v. Portugal [GC], no. 73049/01, § 62, ECHR 2007-I, with further references). 69. The Court notes that the applicant association’s complaint concerns a costs order issued against it by the court in proceedings for reopening obliging it to pay for the legal representation of the respondent party. In this regard, it observes that the Commission previously found that costs of a judicial procedure are “contributions” within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see X. and Y. v. Austria, no. 7909/74, Commission decision of 12 October 1978, DR 15, p.160; Agis Antoniades v. the United Kingdom, no. 15434/89, Commission decision of 15 February 1990, DR 64 p. 237; and Aires v. Portugal, no. 21775/93, Commission decision of 25 May 1995, DR 81, p. 48; see also Eder v. Germany (dec.), no. 11816/02, 13 October 2005 and Hoare v. the United Kingdom (dec.), no. 16261/08, § 50, 12 April 2011). This approach, with regard to court fees, was confirmed in Perdigão v. Portugal ([GC], no. 24768/06, § 61, 16 November 2010), where the Grand Chamber held that the obligation to pay court fees – and the corresponding regulations – was covered by the second paragraph of Article 1 of Protocol No. 1. 70. In several cases which followed Perdigão, cited above, the Court has examined a court order to defray the costs of the other party as an interference with the right to the peaceful enjoyment of possessions which falls within the general rule set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Hoare, decision cited above, § 51; Cindrić and Bešlić v. Croatia, no. 72152/13, § 92, 6 September 2016; and Musa Tarhan v. Turkey, no. 12055/17, §§ 72-73, 23 October 2018). In Cindrić and Bešlić (cited above, § 92) it further distinguished between costs related to the court system as such, and costs incurred by the winning party and due under the “loser pays” rule, indicating that only the former were to be included in the notion of “contributions” within the meaning of the second paragraph of Article 1 of Protocol No. 1. 71. The Court notes that in the present case the costs award against the applicant association issued by the SAC concerned the lawyer’s fees incurred for the legal representation of the respondent party. Those costs were not related to the court system as such but were ordered in favour of the successful party in the proceedings. Thus, their reimbursement is not a contribution within the meaning of the second paragraph of Article 1 (see Cindrić and Bešlić, cited above, § 92). That being so, the Court finds that it will be more appropriate to address the costs award against the applicant association as an interference in the light of the general rule under the first sentence of the first paragraph of Article 1 of Protocol No. 1. 72. Finally, regardless under which rule of Article 1 of Protocol No.1 the complaint is examined, the principles governing the question of justification are substantially the same, involving as they do the need for the interference to be lawful and in the public interest, and to strike a fair balance between the demands of the general interest and the applicant association’s rights (see Denisova and Moiseyeva v. Russia, no. 16903/03, § 55, 1 April 2010). (b) Whether the interference was lawful 73. The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of someone’s possessions should be lawful (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999 ‑ II). The costs award made by the SAC was based on Article 143 of the 2006 Code (see paragraph 41 above) and Article 78 § 5 of the Code of Civil Procedure (see paragraph 43 above). These provisions regulated the general cost-shifting rule in administrative proceedings and the discretion of the court to order the payment of a lower amount for costs at the request of the losing party if that court considered that the fees were excessively high. While the applicant association did not dispute that the costs award had a legal basis in the national legislation, it argued that the national legislation lacked flexibility (see paragraph 63 above). In the Court’s view, this question should more properly be examined under the heading of proportionality. It thus concludes that the costs order was lawful. (c) Whether the interference pursued a legitimate aim 74. Any interference with a right of property, irrespective of the rule under which it falls, must have a legitimate aim (see, mutatis mutandis, Hoare, decision cited above, § 59). The Court has already held that costs are a well ‑ established feature of the justice system (ibid., § 59) and that the purpose of the “loser pays” rule is to avoid unwarranted litigation and unreasonably high litigation costs by dissuading potential plaintiffs from bringing unfounded actions without bearing the consequences. It thus pursues the legitimate aim of ensuring the proper administration of justice and protecting the rights of others and cannot in itself be regarded as contrary to Article 1 of Protocol No. 1 (see Klauz v. Croatia, no. 28963/10, § 84, 18 July 2013; Cindrić and Bešlić, cited above, § 96; and Musa Tarhan, cited above, § 80). Accordingly, the costs order in the present case pursued a legitimate aim. (d) Whether the interference was proportionate to the legitimate aim pursued 75. It remains to be determined whether the measure complained of was proportionate to the legitimate aim pursued. Any interference with the right to peaceful enjoyment of possessions must achieve a fair balance between the demands of the general interest of the community and the requirement of protecting the individual’s fundamental rights (see Beyeler v. Italy [GC], no. 33203/96, § 107, ECHR 2000-I; Hoare, decision cited above, § 60; Cindrić and Bešlić, cited above, § 98). 76. The Court notes that in the instant case the applicant association not only challenged the manner in which the SAC had determined the amount of the costs award, alleging that it had been unfair and unjustified, but also disagreed with the Government that the applicable legal framework afforded sufficient flexibility to the national courts with regard to costs orders (see paragraph 63 above). 77. In this connection the Court reiterates that it is not its task to review the relevant legislation in the abstract but rather to examine the relevant domestic law in so far as the applicants objected to its consequences for their property rights (see The Holy Monasteries v. Greece, 9 December 1994, § 55, Series A no. 301 ‑ A; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 100, ECHR 2006 ‑ V; and Kostov and Others v. Bulgaria, nos. 66581/12 and 25054/15, §§ 77 and 86, 14 May 2020). 78. From that perspective, the Court notes that costs in administrative litigation in Bulgaria are regulated in accordance with the “loser pays” rule or the “costs follow the event” principle (see paragraph 41 above). Under this principle the unsuccessful party in the proceedings has to pay the successful party’s costs. This rule is counterbalanced by two safeguards laid down in the Bulgarian legislation. On the one hand, Article 78 § 5 of the Code of Civil Procedure entitles the losing party to object to the amount of the lawyer’s fees on the grounds that they were excessive. The competent court then has to assess the amount in the light of the actual legal and factual complexity of the case. If it allows the objection, the court may reduce the costs award, but cannot order an amount lower than the minimum amount provided for in the Regulation (see paragraph 43 above). 79. On the other hand, while the Bar Act enshrines the principle of freedom of contract, it likewise requires that the remuneration for the lawyer’s work be fair and justified (see paragraph 49 above). The SAC explained this provision – albeit in a judgment given after the request for reopening lodged by the applicant association – by stating that, to be fair and justified, the minimum lawyer’s fees had to be based on two objective criteria: (i) the volume and the complexity of the work performed by the lawyer, and (ii) the value of the interest involved in the case (see paragraph 53 above). 80. The Court observes that in the present case the applicant association’s request for reopening of the proceedings was dismissed. In line with that outcome, the SAC ordered the association to pay the successful parties’ litigation costs: BGN 300 (approximately EUR 150) for the legal representation of the Ministry and BGN 12,000 (approximately EUR 6,000) for the legal representation of the KNPP. In determining these amounts, the seven-judge panel of the SAC took into account the following factors: (i) the objection raised by the applicant association’s lawyer under Article 78 § 5 of the Code of Civil Procedure regarding the allegedly excessive amount of the lawyer’s fees, and (ii) the legal and factual complexity of the case (see paragraph 25 above). 81. It is evident from its judgment that the SAC calculated the costs order in favour of the Ministry by reference to the minimum remuneration provided for in the Regulation (see paragraphs 25, 51-52 above). However, save for the reference to the legal and factual complexity of the case, the ruling did not specify the way in which the SAC had evaluated the costs in favour of the KNPP and why it had ultimately awarded half of the amount sought (that is, BGN 12,000 (approximately EUR 6,000) of the amount of BGN 24,000 (approximately EUR 12,000) claimed by it, see paragraph 25 above). 82. From the documents in the case file it transpires that the fees charged to the KNPP by the law office engaged in the proceedings were incurred for the following work: a reply to the applicant association’s request for reopening, and legal representation before the SAC. In this regard, the Court notes that the statutory minimum remuneration at the material time for legal assistance in proceedings for reopening, including attendance at a court hearing, was fixed at BGN 500 (approximately EUR 250; see paragraph 52 above). The Court cannot disregard the fact that the costs order in favour of the KNPP was twenty-four times above the minimum remuneration set out in the Regulation. While it seems that the main proceedings did involve more complex legal and factual issues, the SAC did not provide any detailed explanation for its assessment of the complexity of the proceedings for reopening. In this context the Court observes that the proceedings were initiated by the applicant association on the ground that its right to participation in the cassation proceedings had allegedly been breached (see paragraphs 21-22 above). This legal issue was of a procedural nature, does not appear to be particularly complex and had to some extent already been dealt with by the SAC in the main proceedings (see paragraph 19 above). The court also provided no reference to any method of calculation of the lawyers’ fees and consequently of their reasonableness in the specific case. The proceedings did not involve the collection of new evidence and the SAC held only one hearing (see paragraph 24 above). Moreover, in the two ensuing requests for reopening lodged by another non-governmental organisation, the CSD, the SAC awarded much lower sums in lawyer’s fees to the KNPP, namely BGN 5,000 (approximately EUR 2,500) and BGN 2,000 (approximately EUR 1,000; see paragraphs 27-28 above). 83. The Court acknowledges that States should be accorded a wide margin of appreciation in regulating their systems of allocation of costs in judicial proceedings (see, mutatis mutandis, Perdigão, cited above, § 70). Indeed, as already noted, Bulgarian legislation provides for a mechanism allowing a degree of review of the proportionality of the litigation costs (see paragraphs 78-79 above). However, in the present case the SAC applied those rules without giving sufficient consideration to the specific circumstances of the applicant association’s case, especially the fact that the amount of the costs award had been substantial and that in the light of the complexity of the reopening proceedings and the volume of the legal work carried out, the costs order for one level of jurisdiction did not appear reasonable (compare with Hoare, decision cited above, § 60). Thus, by awarding such an amount in costs for the lawyer’s fees of the opposing party, without providing sufficient and relevant reasons so as to ensure that those fees were actually fair and justified as required by domestic law, the SAC failed to properly balance the various interests at stake. Consequently, the applicant association suffered an individual and excessive burden which upset the requisite fair balance between the general interest of society and the individual’s fundamental rights. 84. There has therefore been a violation of Article 1 of Protocol No. 1. APPLICATION OF ARTICLE 41 OF THE CONVENTION 85. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 86. The applicant association claimed non-pecuniary damage for the distress suffered as a result of the ongoing enforcement proceedings in relation to the costs award. It did not specify an amount, leaving the matter to the Court’s discretion. 87. The Government contested the claim, arguing that according to the Court’s case-law no award was to be made in the absence of a formal claim. 88. As to compensation for non-pecuniary damage, the Court has already held that damage other than pecuniary damage sustained by a legal entity may include aspects that are to a greater or lesser extent “objective” or “subjective”. These aspects include the legal entity’s reputation, but also uncertainty in decision-planning, disruption in the management of the legal entity itself (for which there is no precise method of calculating the consequences) and lastly, albeit to a lesser degree, the anxiety and inconvenience caused to the members of the management team (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 182, 29 November 2016). Having regard to the circumstances of the case and its case-law (see, mutatis mutandis, Cindrić and Bešlić, cited above, § 127), and making its assessment on an equitable basis, the Court awards the applicant association EUR 3,000 under this head, plus any tax that may be chargeable on that amount. Costs and expenses 89. The applicant association also sought reimbursement of EUR 1,890 in lawyer’s fees incurred before the domestic court and the Court. It also claimed BGN 400 for the translation into English of the observations and claims made on its behalf. In support of its claim, the applicant association submitted a fee agreement with its legal representative and a time-sheet. 90. The Government contested the above amounts. They pointed out that the costs incurred before the domestic court were not to be reimbursed. They further submitted that the claim for the translation work was not supported by any documents. They also disputed the number of hours spent by the applicant association’s legal representative on the case and the amount of the lawyer’s fees, which in their view was excessive. 91. According to the Court’s settled case-law, costs and expenses are recoverable under Article 41 of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum. 92. In the present case the Court notes that it has found a violation of the applicant association’s right under Article 1 of Protocol No. 1, resulting from the excessive costs award made against it by the SAC in the proceedings for reopening. That violation has been found in respect of the costs order in favour of the winning party and does not concern the expenses incurred by the applicant association in connection with its own legal representation. The Court therefore considers that the costs and expenses incurred before the domestic court were not related to the violation found and that the applicant association is not entitled to them. 93. However, it considers it reasonable to award the applicant association the sum of EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable on that amount. As regards the claim for translation expenses, the Court notes that the applicant association did not submit any supporting documents. Accordingly, it rejects the claim under that head. Default interest 94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 1 of Protocol No. 1, finding that the Supreme Administrative Court, which had ordered the applicant association to pay the legal fees of the nuclear power plant, had failed to give sufficient reasoning as to why it had made such a large order, and had failed to balance the general interest with the rights of the applicant, leaving it to bear an excessive individual burden. |
491 | Family-allowance payments | RELEVANT LEGAL FRAMEWORK AND PRACTICE Relevant domestic law and practiceThe Constitution The Constitution The Constitution 32. Article 6 § 2 provides that all citizens are equal before the law, where the term “citizens” refers to all individuals to whom the Constitution applies. There are to be no privileges or restriction of rights on the grounds of race, national or social origin, ethnic self-identity, sex, religion, education, opinion, political affiliation, personal or social status or property status. 33. Article 14 provides that the family, motherhood, and childhood enjoy the protection of the State and society. 34. Article 32 § 1 provides that the privacy of citizens is inviolable. Everyone is entitled to protection against any unlawful interference in his or her private or family affairs and against encroachments on his or her honour, dignity and reputation. 35. Article 47 provides that the rearing and upbringing of children until the attainment of majority constitutes a right and an obligation for the parents and that the State is to provide assistance to them. Mothers enjoy special protection from the State, which guarantees them paid leave before and after birth, free obstetrical care, easier conditions of work, and other types of social assistance. Under the same provision, children born out of wedlock enjoy equal rights with those born in wedlock. Children left without the care of the immediate family enjoy the special protection of the State and society. The FACA 36. Section 7(1) of the FACA, which was added to the FACA and came into force on 1 January 2013, stipulates that a monthly family allowance for a child who has not finished secondary education, but is no older than 20, is provided to low-income families whose children meet all of the following conditions: (a) they are not cared for full-time in a State institution; (b) they regularly attend school, unless this is impossible due to health reasons; and (c) they live on the territory of Bulgaria on a permanent basis. 37. Under section 7(9) of the FACA, in cases where the family comprises children with only one living parent, the family’s income is not taken into account as a condition for receiving this monthly allowance. 38. Section 7(2) of the FACA provides that the monthly family allowance described in section 7(1) is payable, irrespective of the family’s income, also to relatives or foster families who care for children. Under section 8d of the FACA, the monthly allowance is payable also to families with children with permanent disabilities, irrespective of the family’s income. 39. Under paragraph 1, point 1, of the Additional Provisions of the FACA, as worded at the relevant time, a family comprised spouses or unmarried parents who lived in the same household or single parents and minor children, as well as children over 18 years of age, but no older than 20, who were still in secondary education. “Children” included those who had been born into the family, those who had been recognised by their parents, those who had been adopted, and stepchildren, but did not include children who had married. 40. Under paragraph 1, point 9, of the Additional Provisions of the FACA, which was first introduced in 2012, “a child with only one living parent” is a minor, or under 20 years of age and in secondary education, one of whose parents (including adoptive parents) has died and who is being cared for by the other parent (including an adoptive parent), on condition that the latter has not remarried. 41. Section 17(3), points 13 and 14, of the Regulations for the implementation of the FACA provided at the material time that monthly allowances for families with children in secondary school who were no older than 20 and who had only one living parent, were payable upon submission of a request ( молба-декларация ) to that effect, to which had to be attached an heirs certificate and a family-status certificate. 42. Under section 17(3), point 1, monthly allowances for children living in low-income families were paid upon submission of a certificate showing the family’s income during the previous twelve months. The 2013 Constitutional Court’s decision 43. In its decision no. 3 of 27 June 2013, the CC rejected the Ombudsperson’s request to declare section 7(9) of the FACA (see paragraph 37 above) unconstitutional in so far as it used the word “living”. The Ombudsperson had submitted that when the legislature had introduced a privilege for a certain group of people, namely children with only one living parent, by eliminating family income as a criterion for eligibility for a family allowance, that privilege had to cover all children who had only one parent, as they were in an identical position to those in the first group. The CC acknowledged that in a State governed by the rule of law the legislature was required to treat similar cases alike and different cases differently. That was the only way to guarantee equality before the law and justice in society. That said, the existence of significant differences required the legislature to intervene and differentiate the applicable rules in order to achieve equal protection. 44. The CC went on to note that Article 14 of the Constitution provided that the family enjoyed the protection of the State and Article 47 § 1 of the Constitution required the State to assist parents in the upbringing of their children (see paragraph 35 above). It was beyond doubt that children who only had one living parent were a vulnerable category in need of protection by the State. The question was whether the legislature had breached the principle of equality before the law by introducing a privilege for only one sub-group of parents who were the sole caregivers to their children. 45. The CC found that there were significant differences within the larger group of single-parent families referred to by the Ombudsperson. Families in which one parent cared for the children following the death of the other parent could hardly be considered identical to families in which the children were being brought up by one parent following the divorce of the parents and the granting of custody rights to one of them. In particular, while divorce put an end to the marriage of the parents, the child continued to have two parents. As a result, the environment in which that child was being reared differed significantly from the environment of a semi-orphaned child. In the former case the child was bound to receive care by both parents, as custody could be modified and, in any event, both parents were responsible for participating in the child’s upbringing. 46. Similarly, there was a significant difference between the situation of a child being reared by his or her surviving parent and a child being reared by a parent who was not married and caring for the child alone. In the latter case, it was possible for the child’s legal representative to bring an action in the name of the child for establishing the child’s legal ties to the other parent. As a result of such an action, the child would become part of another family, with all the personal and economic consequences that would bring. This in turn was in the best interest of the child as it was of crucial importance for the establishment of his or her legal status. 47. This was also the purpose behind Article 47 of the Constitution, namely the objective for every child to have his or her origin determined in relation to both parents as an important premise for defining the environment for the child’s care and upbringing. Similarly, Article 7 of the Convention on the Rights of the Child stipulated that every child had the right to know his or her parents. A parent’s death automatically terminated the relationship between that parent and the child and undeniably affected his or her emotional and psychological state. Both the family and the child underwent a drastic change as a result of circumstances beyond their control and, in such situations, the State stepped in in order to provide assistance towards the care of the semi-orphan child. The introduction of a different regime of social protection in respect of these two categories was justified in order to ensure equal protection to children cared for by only one living parent. 48. At their very origin, allowances for families with children were intended for families affected by factors over which they had no control, yet which had permanent negative effects on the psychological state of the family members. It was impossible to treat similarly different members of a very broad group without accounting for the reasons for which children were being reared by a single parent. If the word “living” were to be eliminated from the legal provision in question, this would lead to an unjust result, given that the same legal regime would apply to a diverse group of cases. That in turn would mean treating similarly different cases which would lead to a breach of the principle of equality before the law. 49. The purpose of the privilege introduced by section 7(9) of the FACA was to differentiate a specific subset of cases from the broader group within which it fell. Extending the privilege to the broader constituents of the group would lead to the two constituent groups swapping places. If the privilege were to be applied to the whole broad group of cases of single ‑ parent families, this would lead to the opposite of the intended outcome, namely to a limitation of the rights of the people in the specific subset of cases. 50. The reasons at the origin of the privilege introduced by the FACA fell outside of the characteristics, exhaustively enumerated in the Constitution, on the basis of which it was unacceptable to limit rights or grant privileges. There was no obstacle for the legislature to introduce additional characteristics, on the basis of which certain groups of people would benefit from a privilege, as long as it did not lead to a breach of the requirement in Article 6 of the Constitution (see paragraph 32 above). In other words, privileges could not be discriminatory. This in turn meant that the difference in treatment provided in this particular case was justified by the differences observed within the broader group of single-parent families. 51. Article 3 of the Convention on the Rights of the Child provided that States were obliged to ensure that children in a family benefited from the care and protection necessary for their well-being, taking into account the rights and obligations of their own parents or other caregivers, including by means of all necessary administrative and legal measures. It was precisely to provide for the best interests of the child that the legislature had introduced section 7(9) of the FACA, given that it provided the requisite care for children one of whose parents had died. The Regulations for the implementation of the Social Assistance Act 52. Paragraph 1, point 3, of the Additional Provisions of the Regulations for the implementation of the Social Assistance Act provides that a “single parent” is a person who, as a result of widowhood, divorce or lack of civil marriage, has the sole care of children younger than 18, or up to 20 years of age if they are still enrolled in secondary education. The Family CodeAcknowledging paternity of a child Acknowledging paternity of a child Acknowledging paternity of a child 53. Under Article 65 § 1 of the Family Code, a father can acknowledge paternity of a child by means of a declaration made in writing and in person before a civil-status officer, or a declaration certified by a notary and deposited with the civil-status officer. Action for establishing paternity 54. Under Article 69 of the Family Code, an action for establishing paternity can be brought in court against the father by the child’s mother within three years of the birth and by the child himself or herself no later than three years after reaching majority. Under Article 129 of the Family Code, any parent can represent his or her minor child. In an interpretative ruling (no. 5/78 of 21 February 1979), the Plenary of the then Supreme Court clarified that, under the law (the provision in force at the time was identical to Article 69 of the Family Code currently in force), a child could bring a claim for the establishment of paternity even before he or she reached majority. This could be done by the child’s mother, acting as the legal representative of the child and exercising the child’s right to bring such a claim. The Protection Against Discrimination Act 55. Under section 68 of the Act, the decisions of the Commissions for the Protection against Discrimination are subject to judicial review within fourteen days of the interested parties being notified of them. Relevant international materialEuropean Social Charter (Revised) European Social Charter (Revised) European Social Charter (Revised) 56. Article 16 of the revised European Social Charter (“the Charter”), in force in respect of Bulgaria since 1 August 2000, reads as follows: The right of the family to social, legal and economic protection “With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family allowances, fiscal arrangements, provision of family housing, family allowances for the newly married and other appropriate means.” 57. According to the interpretation given by the European Committee of Social Rights to the provisions of the Charter, compiled in its Digest of 2018, the protection afforded in Article 16 of the Charter covers single-parent families. The scope of Article 16 is, in any case, not restricted to families based on marriage. States Parties enjoy discretion to choose the means in their endeavour to ensure the social, legal and economic protection of the various types of families that can be found in the population. States Parties are required to ensure the protection of vulnerable families, single-parent families and Roma families, in accordance with the principle of equality of treatment. 58. Article E of the Charter provides as follows: Non-discrimination “The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.” 59. In its decision on a collective complaint (see International Association Autism-Europe v. France, Complaint No. 13/2002, decision on the merits of 4 November 2003, § 52), the European Committee of Social Rights observed that the wording of Article E was almost identical to the wording of Article 14 of the Convention. The Committee held that Article E not only prohibited direct discrimination but also all forms of indirect discrimination, and that such indirect discrimination might arise by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all. In the same decision the Committee further considered that the insertion of Article E into a separate Article in the Revised Charter indicated the heightened importance the drafters paid to the principle of non-discrimination with respect to the achievement of the various substantive rights contained therein. It held that its function was to help secure the equal effective enjoyment of all the rights concerned regardless of difference (ibid., § 51). The Convention on the Rights of the Child 60. Article 3 of the United Nations Convention on the Rights of the Child, signed in New York on 20 November 1989 and in force in respect of Bulgaria since 3 July 1991, reads as follows: “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.” International Covenant on Civil and Political Rights (“the ICCPR”) 61. Article 23 of the ICCPR reads as follows: “1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.” International Covenant on Economic, Social and Cultural Rights (“the ICESCR”) 62. Article 9 of the ICESCR reads as follows: “The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.” THE LAW JOINDER OF THE APPLICATIONS 63. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rule of Court). ALLEGED VIOLATION OF ARTICLES 8 and 14 OF THE CONVENTION 64. The applicants complained that by requiring that they, as single mothers, establish paternity of their children and provide a death certificate in respect of the children’s fathers as a condition for receiving a family allowance payable monthly to families with “children with only one living parent”, the authorities had breached their right to respect for their private and family life, protected by Article 8 of the Convention. Furthermore, by interpreting the phrase “children with only one living parent” as meaning solely “children with one deceased parent”, the authorities had breached the applicants’ right not to be discriminated against, as they had failed to recognise that the category of families with “children with only one living parent” included that of families with “children one of whose parents was unknown”. They relied in this respect on Article 14 of the Convention taken in conjunction with Article 8. 65. The relevant Convention provisions provide as follows: Article 8 “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Scope of the case 66. Since the alleged discriminatory treatment of the applicants lies at the heart of their complaint, having regard to the circumstances of the present case, and bearing in mind that it is master of the characterisation to be given in law to the facts of a complaint (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018 ), the Court considers it appropriate to examine the applicants’ grievances only from the standpoint of Article 14 of the Convention taken in conjunction with Article 8. AdmissibilityAs regards application no. 43863/15 As regards application no. 43863/15 As regards application no. 43863/15 67. The Government submitted that the second applicant had failed to exhaust domestic remedies by omitting to seek to be granted the allowance in question, as well as by failing to appeal against the judgment of the Sofia City Administrative Court. Alternatively, she had failed to comply with the six-month time-limit, as she had lodged her application with the Court more than seven months after the last domestic decision in her case had become final. 68. The second applicant stated that, if there were several possible remedies open to her, she was only expected to have tried one of them. Moreover, she had relied on the Commission to appeal against the judgment of the first-instance court in the discrimination proceedings which she had initially brought. The Commission had not explained its unusual lack of initiative and the second applicant considered that she should not be penalised for this. 69. The Court considers it unnecessary to determine whether the second applicant exhausted domestic remedies as, in any event, it finds that her application is inadmissible for failure to observe the six-month time-limit. The Court notes in that connection that the second applicant was notified of the first-instance court’s judgment, which quashed the Commission’s decision and after which there were no further procedural developments at the national level, on 22 December 2014, and it became final on 20 January 2015 as no appeal had been lodged against it (see paragraph 30 above). It thus became the final domestic decision in her case. The second applicant was apparently told in April 2015 that the Commission had not appealed against the judgment (see paragraph 31 above). However, she only applied to the Court on 28 August 2015 which was more than six months after the judgment becoming final on 20 January 2015. 70. It follows that application no. 43863/15 was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. As regards application no. 18592/15 (a) Compatibility ratione materiae 71. The Court has consistently held that Article 14 has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by the other substantive provisions of the Convention and its Protocols. For Article 14 to be applicable, it is enough for the facts of the case to fall within the ambit of one or more of those provisions; moreover, the prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000 ‑ IV, and E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008). 72. Admittedly, Article 8 does not include a right to family allowances or impose any positive obligation on States to provide such allowances. That said, the Court has held that parental leave and related allowances promote family life (see Topčić-Rosenberg v. Croatia, no. 19391/11, §§ 37 ‑ 38, 14 November 2013, with further references). Also, by granting child benefits, States are able to “demonstrate their respect for family life” within the meaning of Article 8 of the Convention (see Niedzwiecki v. Germany, no. 58453/00, § 31, 25 October 2005). Thus, parental allowances and child benefits come within the scope of Article 8 (see Konstantin Markin v. Russia [GC], no. 30078/06, § 130, ECHR 2012 (extracts); Petrovic v. Austria, 27 March 1998, §§ 26-29, Reports of Judgments and Decisions 1998 ‑ II; Di Trizio v. Switzerland, no. 7186/09, §§ 60-62, 2 February 2016; Okpisz v. Germany, no. 59140/00, § 32, 25 October 2005; and Fawsie v. Greece, no. 40080/07, § 28, 28 October 2010; see also Weller v. Hungary, no. 44399/05, § 29, 31 March 2009, in the context of a maternity benefit). The Court sees no reason to depart from those conclusions in the present case, which concerns the allowance for the first applicant’s minor children provided for by section 7(9) of the FACA (see paragraph 37 above). Accordingly, if a State does decide to create a parental leave scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see, similarly, Petrovic, §§ 26-29, and Konstantin Markin, §130, both cited above). 73. It follows that Article 14, taken together with Article 8, is applicable. (b) No significant disadvantage (i) The parties’ submissions 74. The Government submitted that the application had to be dismissed in accordance with Article 35 § 3 (b), as the first applicant had not suffered a significant disadvantage. 75. More specifically, had she succeeded with her claim at the national level, she would have been receiving 43.50 euros (EUR) per month for both children together. Given that she had been insuring herself at the national level for what was at the time the highest insurable monthly income of EUR 1,100, her interest in receiving EUR 43.50 a month was negligible. In addition to the minimal personal interest of the applicant, the question did not concern a structural issue and her case had been duly considered by several domestic tribunals. 76. The first applicant disagreed. She pointed out that, as the problem she had raised was equally valid in respect of all children who were excluded from the system of the said family allowance because their paternity had not been established, the issue effectively concerned a structural problem. Furthermore, it was unacceptable for the State, which was responsible for the petty amounts paid in family allowances, to use the argument of “insignificant disadvantage” on the basis of those amounts being negligible. 77. In any event, given the age of her children at the time she had lodged the request for the allowance, her family would have been entitled to receive EUR 522 per year for the two children together for a duration of eight years (until the elder child reached majority). Thereafter, the family would have been entitled to receive a further EUR 681.12 for three years in respect of the younger child before he reached majority. All in all, the family would thus have received EUR 4,857.12 under the allowance in question, even if the applicable rates were not increased over the years. (ii) The Court’s assessment 78. The Court reiterates that, as pointed out in its previous case-law (see Mura v. Poland (dec.), no. 42442/08, § 20, 2 June 2016, and C.P. v. the United Kingdom (dec.), no. 300/11, § 41, 6 September 2016 ), the purpose of the admissibility rule in Article 35 § 3 (b) is to allow the Court to concentrate on its central mission of providing legal protection of human rights at the European level. 79. The question whether the applicant has suffered any “significant disadvantage” represents the main element of the rule. Inspired by the general principle de minimis non curat praetor, this first criterion of the rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant’s subjective perceptions and what is objectively at stake in a particular case. In other words, the absence of any “significant disadvantage” can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant. However, the applicant’s subjective perception cannot alone suffice to conclude that he or she has suffered a significant disadvantage. The subjective perception must be justified on objective grounds (see, inter alia, C.P. v. the United Kingdom, cited above, § 42, with further references). 80. There are two further criteria under Article 35 § 3 (b). The second compels the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify the States’ obligation under the Convention or to induce the respondent State to resolve a structural deficiency ( ibid., § 49 ). Finally, the third criterion does not allow the rejection of an application if the case has not been “duly considered by a domestic tribunal” (ibid., § 51). 81. Turning to the instant case, the Court observes that the core of the first applicant’s complaint concerns the exclusion of children with unknown fathers from the allowance provided for by section 7(9) of the FACA, and the ensuing discrimination allegedly suffered by those children’s families vis-à-vis the families with a deceased parent. The domestic proceedings which the applicant brought did not result in her achieving her objective of determining that her family should not have been excluded from that State benefit (contrast C.P. v. United Kingdom, cited above, § 46). Likewise, it cannot be said that the resulting exclusion did not bring about any actual prejudice to her family, given that it was deprived altogether of the said assistance from the State. Quite apart from the purely financial value of that assistance, the complaint is that the authorities’ actions culminated in the applicant being made ineligible for receiving it and in her children, whose father was unknown, being placed in a less favourable position than children who had only one living parent as a consequence of the second one having died. 82. The complaint thus raises an important question both in terms of the subjective perception of the applicant and as regards what is objectively at stake. Consequently, the issue cannot be reduced, as the Government suggested, to a mere monetary comparison between the applicant’s family’s income and the financial benefit of her receiving the allowance in question. The Court finds that it cannot be said therefore that the first applicant did not suffer a significant disadvantage as a result of the refusal to grant her the allowance a stake. 83. This conclusion would be sufficient to reject the Government’s preliminary objection of lack of significant disadvantage. However, the Court also notes the following as regards the second element of the test, namely the necessity to hear the case if respect for human rights so requires (see paragraph 80 above). The authorities’ decisions – to require the establishment of the identity of the father in order to be eligible to receive an allowance – have broader repercussions for the right to freedom from discrimination and the right to private life for individuals who, like the first applicant, have the sole charge of their family’s care by virtue of the father being unknown, as well as for their children. The Court thus finds that the question raised by this application is one of a general character affecting the observance of the Convention. It considers that it may therefore be necessary for it to clarify the State’s obligations, in particular under Articles 14 and 8 of the Convention. The Court also needs to assess whether the resulting situation is one of a structural nature which would in turn require the State to act in order to resolve it. 84. Finally, as regards the third criterion, namely the requirement that the case be duly considered by a domestic tribunal, the Court notes that the applicant’s legal challenge to the administrative refusal to grant her the benefit was effectively examined at two levels of jurisdiction which considered in substance the same subject matter of the complaint as that raised in the present application. 85. The Court finds that owing to the absence in the present case of two of the three stated criteria for inadmissibility, the Government’s objection of lack of significant disadvantage should be dismissed. (c) Other grounds of inadmissibility 86. The Court notes that application no. 18592/15 is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other ground listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsSubmissions by the parties Submissions by the parties Submissions by the parties (a) The first applicant 87. The applicant submitted that the State had breached her right to private and family life by imposing a duty on her, as a single parent, to establish paternity of her children in order for the children to be treated in a non-discriminatory manner and her family not to be excluded from the system of family allowances. Given that the Constitution provided that children born out of wedlock enjoyed equal rights with those born within it, and that mothers enjoyed special protection, the above-described requirement was disproportionate and in breach of the applicant’s right to private and family life and freedom from discrimination. The legal definition of “children with only one living parent” (see paragraph 40 above) implied that only children with established origin from both parents were considered eligible for the allowance under section 7(9) of the FACA, provided that one of the parents had passed away. This definition excluded from the outset and discriminated against families of children with non-established paternity. 88. To the extent that the State had introduced an allowance for children with only one living parent, regardless of the financial situation of the family, it was unjust to exclude from eligibility for it children in families with only one parent by reason of the second one being unknown. Any internal differentiation with regard to the mental state of the child (whether he or she had suffered from the death, and so on) was irrelevant. 89. It was all the more unjustified to make it a precondition for children’s inclusion in the allowance system that their mother bring a legal action against their father to establish paternity. In order to be admissible under Bulgarian law, such an action could only be brought within three years of the birth of the child (see paragraph 54 above) and, at the time when the applicant’s request for the allowance had been refused, this limitation period had expired. 90. The central element of importance for determining whether the situation of children one of whose parents had died was similar or different to children whose father had not recognised them lay in the reality of the family situation and in the range of care actually received. The authorities’ actions in the applicant’s case had led to a situation whereby her children, who had not been recognised by their father, could achieve non-discriminatory treatment only if beforehand the applicant had allowed a disproportionate interference in her private and family life to take place. (b) The Government 91. The Government recognised that the first applicant and her children represented a family both within the meaning of the Convention and of the national legislation (on the last point, see paragraph 39 above). 92. The introduction of the allowance in section 7(9) of the FACA had been aimed at implementing the State’s policy of protecting families and children, as required under the Constitution. The State had a margin of appreciation in respect of the specific vulnerable groups of the population to which it extended its support and protection. This benefit provided, in particular, necessary assistance for the vulnerable group of children one of whose parents had died. The allowance was also available to families with disabled children and to foster families, and families of children’s relatives who cared for them instead of their own parents (see paragraph 38 above). The legislature’s logic had been that the allowance, even if negligible in its financial aspect, was aimed at compensating to a certain extent the emotional trauma experienced by children as a result of the loss of a parent, or because of a physical disability, or of the impossibility of living with their own mother and father. 93. Introducing a benefit irrespective of the family’s income for families of children with unknown fathers would, in the words of the Government, result in unequitable treatment of other groups of children being raised by one parent. 94. There was no difference in law in the treatment of children, irrespective of whether they had been born in or outside of marriage and whether their fathers had recognised them or not. In order to be eligible for the benefit in question, it was sufficient for the child to have had two parents, one of whom had died. In all other cases of single-parent families, the law provided for different ways of establishing and restoring the child’s relationship with the second parent, which included the bringing of an action in court to establish paternity of the child. However, bringing such an action was the mother’s prerogative and she could decide whether and when to exercise it. There was no general obligation under Bulgarian law, or practice, for mothers to have to establish paternity of their children. 95. There could be many and diverse reasons why paternity had not been established in the instant case, including some of a profoundly intimate character. The applicant had taken a conscious decision to be a single mother and her situation was not due to objective reasons beyond her control. 96. There was a significant difference between the situation of a semi-orphaned child and a child who lived with only one of his or her parents because they had not married or following a divorce. In the latter case, the child continued to have two parents and was consequently bound to receive care from both parents, as custody could be modified and, in any event, both parents were responsible for participating in the child’s upbringing. Conversely, the connection of the semi-orphaned child with the deceased parent had been irreversibly severed. 97. Bulgarian law provided a number of possible options to women in the exercise of their reproductive rights. These included assisted insemination and unrestricted access to abortion in cases of unwanted pregnancy. Also, a number of provisions in different pieces of Bulgarian legislation entitled single-parent families, including mothers of children whose fathers were unknown, to receive financial assistance, on condition that their income was under a certain threshold. 98. The Government also pointed out that, generally speaking, the most common reason for a father not to recognise a child was his unwillingness to do so. This applied particularly in situations where the fathers actually lived with the family without having legally recognised the children. They suggested that it was a regular practice of certain ethnic and social communities in Bulgaria to “pretend” that the mother was a single parent so as to more easily obtain State benefits. This particular practice explained the high number of unrecognised children in the statistics (see paragraph 25 above). 99. Finally, if the State were to provide financial assistance to all children in the country whose fathers were unknown, which was between 14% and 18% of all children born, this would represent a disproportionate burden on the State budget. If the State were to be found in violation of the prohibition of discrimination as a result of not treating families with unknown fathers as equal to families with a deceased parent, the State would in all likelihood be forced to do away with the allowance altogether, given that the burden on the budget would be excessive. The Court’s assessment (a) General principles 100. According to the Court’s settled case-law, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous situation does not require that the comparator groups be identical. An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017, with further references). Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Konstantin Markin, cited above, § 125). 101. Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see X and Others v. Austria [GC], no. 19010/07, § 98, ECHR 2013). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to observance of the Convention’s requirements rests with the Court (see Kurić and Others v. Slovenia [GC], no. 26828/06, § 387, ECHR 2012 (extracts)). A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006-VI). The Court has stressed in the context of Article 14 in conjunction with Article 1 Protocol 1 that, although the margin of appreciation in the context of general measures of economic or social policy is, in principle, wide, such measures must nevertheless be implemented in a manner that does not violate the prohibition of discrimination as set out in the Convention and complies with the requirement of proportionality (see Fábián, cited above, § 115, with further references). Thus, even a wide margin in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination. Hence, in that context the Court has limited its acceptance to respect the legislature’s policy choice as not “manifestly without reasonable foundation” to circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality (see J.D. and A v. the United Kingdom, nos. 32949/17 and 34614/17, § 88, 24 October 2019, with further references). 102. The Court has also considered that as the advancement of gender equality is today a major goal in the member States of the Council of Europe, very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (see Konstantin Markin, cited above, § 127). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex ( ibidem ). The Court has also noted that common ground between the member States of the Council of Europe regarding the importance of equal treatment of children born within and children born outside marriage has been established for a long time, which has, moreover, led to a uniform approach today by the national legislatures on the subject – the principle of equality eliminating the very concepts of legitimate children and children born outside marriage – and to social and legal developments definitively endorsing the objective of achieving equality between children (see Fabris v. France [GC], no. 16574/08, § 58, ECHR 2013 (extracts), and Marckx v. Belgium, 13 June 1979, § 41, Series A no. 31; see also the 1975 European Convention on the Legal Status of Children Born out of Wedlock). Accordingly, very weighty reasons have to be advanced before a distinction on grounds of birth outside marriage can be regarded as compatible with the Convention ( ibidem; see also Genovese v. Malta, no. 53124/09, § 44, 11 October 2011 ). 103. The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Biao v. Denmark [GC], no. 38590/10, § 90, 24 May 2016, and Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no. 94). 104. Article 14 does not prohibit all differences in treatment, but only those differences based on an identifiable, objective or personal characteristic, or “status”, by which individuals or groups are distinguishable from one another. The words “other status” have generally been given a wide meaning, and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Carson and Others, cited above, § 70, and Clift v. the United Kingdom, no. 7205/07, §§ 56-58, 13 July 2010). 105. As concerns the burden of proof in relation to Article 14 of the Convention, once the applicant has demonstrated a difference in treatment, it is for the Government to show that it was justified (see Biao, cited above, § 92). (b) Application of these principles to the present case (i) Whether the applicant was in a relevantly similar or analogous situation to that of surviving parents whose children had been legally recognised by the deceased parent 106. The Court must consider whether the applicant, a single mother whose minor children have not been recognised by their father, is in an analogous situation to the groups who were entitled to the benefit irrespective of income under section 7(9) of the FACA, namely single parents of children whose legal ties to both of their parents had been established before the other parent’s death. Those groups comprised fathers of children whose mothers had died; widows whose children were born in wedlock; and single mothers whose children’s fathers had recognised them before dying. 107. The Court has already found that, in so far as parental leave allowances are concerned, men and women are in an analogous situation (see Konstantin Markin, cited above, § 132). As regards family allowances which are meant to support families with children with one surviving parent, the Court finds no reason to hold otherwise. Men and women are likewise “similarly placed” in terms of their role as sole carers for their children. 108. The Court must also decide whether single mothers of children of unknown fathers (like the first applicant) are in a relevantly similar situation to surviving mothers who are widows or whose children’s fathers have legally recognised them. In carrying out this analysis, the Court must have regard to the particular nature of the complaint (see Fábián, cited above, § 113), which in the present case concerns a claim for monthly allowances under section 7(9) of the FACA. The Court notes that, as advanced by the Government, the primary aim of the introduction of the benefit in question was the implementation of the policy of protecting families and children as enshrined in the Constitution (see paragraph 92 above). While the Government also suggested that the allowance was aimed at compensating for the suffering resulting from the death of a parent, this does not seem to be the main rationale of the legislative scheme. The Court observes that the relevant domestic legislation, namely section 7 of the FACA, was geared towards providing ongoing support to children growing up in a disadvantaged family situation more generally (see paragraphs 36-40 above). Taking into account the basic characteristics of the scheme in issue, namely providing ongoing monthly support for families with children, who for a variety of reasons are in a vulnerable position (see also paragraph 119 below), and the role of the groups of mothers described above in acting as the sole carer for their children, the Court is of the view that those groups are in a “a relevantly similar situation”. (ii) Whether there was a difference in treatment 109. The Court observes that the first applicant was refused the monthly allowance under section 7(9) of the FACA as she could not produce documents certifying that the father had died and the children were his legal heirs. The Court also notes that the other groups discussed in the previous two paragraphs could claim the allowance, being in a position to produce those documents as their children had established legal ties to both parents. Consequently, there was a difference in treatment between the applicant’s family and the other groups of families discussed above. (iii) Whether the difference in treatment was based on a ‘status’ envisaged under Article 14 110. The Court further observes that the first applicant was treated differently on the following two grounds. 111. The first one is in relation to her sex, given that, as maternity is determined by the act of birth, in the vast majority of cases it is only children’s paternity that can be unknown. The applicant, as a mother of a child with an unknown father, could not provide the required documents under the law, while a single father whose children’s mother had died would normally be able to do so. 112. The second ground for the difference in treatment is the applicant’s family status. The applicant was treated differently on account of being a single mother, with the identity of the fathers of her children not being established. This was the result of the language of section 7(9) of the FACA as regards families with “only one living parent”, interpreted as corresponding to families with “one surviving parent”, and of the requirement for one of the parents in the family to have died (see paragraph 40 above), an interpretation confirmed and clarified by the Constitutional Court in 2013 (see paragraphs 44-51 above). 113. The Court notes that, as a result of the application of this law, the first applicant’s family was excluded, on the basis of her family status, from receiving the monthly allowances. In particular, her family could not satisfy the relevant requirements for receiving the benefits, as her children did not have their legal ties to both parents established. (iv) Whether the difference in treatment was objectively justified 114. It remains to be ascertained whether, in relation to the family benefit in question, the difference in treatment of parents depending on their sex and on their family status pursued a legitimate aim and was objectively and reasonably justified under Article 14 of the Convention. 115. The Court observes firstly that the applicable law, namely section 7(9) of the FACA, provides that the benefit is payable only to the families of children with two legally established parents, one of whom has died. Thus, it is the law itself which differentiates between that category of families and families with only one known parent, like that of the first applicant. In the Court’s view, the legal provision in question, as confirmed by the Constitutional Court’s interpretation, is based on a very traditional and outdated understanding of a family, in particular as regards the expectation that there must be two parents with whom the children have established legal ties (see paragraphs 46 and 47 above). The Court has held that very weighty reasons would have to be advanced before a difference in treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention (see, among other authorities, Genovese, cited above, § 44, 11 October 2011, where the applicant had been born out of wedlock, although subsequently to his birth he had had his legal ties to both parents established). In another case examined by the Court, namely Camp and Bourimi v. the Netherlands (no. 28369/95, § 38, ECHR 2000 ‑ X), the applicant’s ties with his father were not legally recognised and, as a result, he was treated differently (less favourably) not only in comparison with children born in wedlock but also in comparison with children who, although born out of wedlock, had been recognised by their father. The Court held in Camp and Bourimi that similarly weighty reasons were required for this latter difference in treatment to be compatible with the Convention ( ibidem ). 116. The Government’s submissions that it would have been sufficient for the first applicant to demonstrate that her children had had two parents and that one of them had died for her to receive the allowance (as they pointed out in paragraph 94 above) only confirm this stereotypical understanding of families as necessarily having two legal parents. The Court reiterates that stereotypes of this nature, requiring legally established ties to both parents in a family, cannot be considered to amount to sufficient justification for a difference in treatment, any more than similar stereotypes based on race, sex, colour or sexual orientation (see, in relation to the perception of women as primary child-carers and men as primary breadwinners, Konstantin Markin, cited above, § 143; see also, mutatis mutandis, Genovese, cited above, § 44, and Camp and Bourimi, cited above, § 38). 117. The Court agrees with the Government’s point that the considerations on the basis of which the first applicant may not be willing to disclose the identity of her children’s father, and/or seek legal recognition through the courts in order to satisfy the requirements of section 7(9) of the FACA, may be numerous and that they are in any event strongly personal in nature (see paragraph 95 above). Contrary to the position of the Government, however, the Court does not consider that the applicant should be required to undertake steps – such as either asking the father to recognise the children (see paragraph 53 above) or instituting court proceedings seeking to establish paternity (see paragraph 54 above) if the father was known to her – as a precondition for equal treatment of her family to that of families with children who have had their legal ties to both parents established and one of whose parents has died. Accepting this would equate to a prior interference in her private and family life in order for her family to receive equal treatment. Consequently, making receipt of the allowance conditional on the applicant’s disclosure of intimate information, and/or taking legal steps through the courts to establish the children’s paternity – all of which fall squarely in the sphere of her private life and which she does not wish to do – amounts to making the full exercise of her right to respect for her family life conditional upon her relinquishing the exercise of her right to respect for her social and personal identity and psychological integrity, all of which are protected under Article 8 of the Convention (compare, mutatis mutandis, A.P., Garçon and Nicot v. France, nos. 79885/12 and 2 others, § 131, 6 April 2017; see also Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017 as regards the content of Article 8). The existence of such a requirement can therefore hardly be considered objectively justified. 118. As to the justification focused entirely on the loss of a parent (see the Government’s argument summarised in paragraph 92 in fine above), the Court notes that children whose father is unknown cannot as a rule be said to be in a better position than children with one deceased parent, without accounting for a whole range of surrounding and relevant other circumstances which inevitably vary greatly from case to case. Similarly, it cannot be said that such children require less care and protection. They may arguably be in an even worse position, given that, unlike children with established paternity, they could not be their father’s legal heirs. In objective terms, they are deprived of the care and protection of one of their parents in the same way as children one of whose parents has died. 119. In the process of explaining the aim of the allowance under section 7(9) of the FACA, the Government also pointed out that a family allowance irrespective of the family’s income was provided under different provisions of the law also to families of children with disabilities, and to families of children who are cared for in their relatives’ families or in foster families (see paragraphs 38 and 92 above). The underlying common reason for that, according to the Government, was the emotional trauma provoked by circumstances other than the death of a parent, and the legislature’s aim was to compensate, at least to a certain extent, those particularly vulnerable categories of children. The Court finds that the present applicant’s family situation, which, according to her, was characterised by the absolute absence of a father, cannot as a rule be considered advantageous to the children in her family. The arguments advanced by the Government to justify the exclusion of her family from receiving the benefit are therefore not consistent or convincing and, as a result, they cannot be taken to provide either reasonable or objective justification for that exclusion. 120. As to the argument that, if families of children with unknown fathers were made eligible for the monthly allowance in question, this would result in unequitable treatment of other groups of children being raised by one parent (see paragraph 93 above), the Court emphasises that the Government did not elaborate upon and specify which groups they meant, and the Court’s task is limited to the examination of the particular facts presented before it. 121. To the extent that it may be inferred from the Government’s observations that the requirement to establish the identity of the father served to protect the State against fraud (see paragraph 98 above), the Court finds that the Government have not, at any point, argued that the applicant herself was attempting, or aiming, to defraud the State by claiming the allowance in question. Rather, the Government suggested that this was a regular practice of certain ethnic and social communities in Bulgaria aimed at claiming State benefits for which they would not otherwise be eligible. However, the Government failed to provide any evidence, statistical or other, in support of their claims of such widespread fraud and how the impugned policy was aimed at protecting against such fraud (see paragraph 25 above). It is difficult to accept the argument advanced by the Government that the total number of unrecognised children reflects in itself a fraudulent practice and that the impugned legislation was therefore justified in terms of protecting against such fraud. Neither have the Government presented evidence that other, more standard measures directed towards preventing fraudulent claims have been ineffective. The Court emphasises in this connection that there are different legal and policy means for successfully combatting fraud and, in any event, the argument of prevention of fraud is not relevant to the applicant’s personal situation. 122. The Government further emphasised that including the category to which the applicant belongs in the benefit plan would result in an excessively high cost to the State, for which it lacked resources. They also submitted that, if the Court were to find a violation of the prohibition of discrimination in respect of the applicant, the State would likely be forced to do away with the benefit altogether, because of the excessive financial burden it would face (see paragraph 99 above). 123. Indeed, States are usually allowed a wide margin of appreciation when it comes to general measures of economic or social strategy (see, among others, Ponomaryovi v. Bulgaria, no. 5335/05, § 52, ECHR 2011 and the case-law quoted in paragraph 101 above) and the resources which the authorities may devote to family benefits are inevitably limited. Moreover, widely different systems for social benefits exist in the States Parties to the Convention. However, the lack of a common standard does not absolve those States which adopt family allowance schemes from the obligation to grant such benefits without discrimination (compare, mutatis mutandis, Weller, cited above, § 34; see also the case-law quoted in paragraph 101 above). Even a wide margin of appreciation in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination (see J.D. and A v. the United Kingdom, cited above, § 88). Thus, even bearing in mind the wide margin of appreciation available to the State in matters of social and economic policies, the Court considers that the argument that making the applicant’s category eligible for the benefit is unacceptable because it would result in the authorities having to pay more than they currently do, is not in itself sufficient for justifying such a difference in treatment. 124. Finally, while it is not for the Court to engage with the policy dimension of a potential measure of doing away with the benefit altogether, which the Government have warned may be necessary, this cannot prevent it from dealing with the essence of the complaint before it, under Article 14 of the Convention in conjunction with Article 8, in view of the fundamental importance of the prohibition of discrimination and the right to respect for one’s family life. 125. On the basis of the above, the Court concludes that surviving parents of children legally recognised by the deceased parent had an entitlement to the family benefit irrespective of the family’s income. By contrast, the applicant, a single mother of children with an unknown father did not. The Government neither alleged nor produced evidence to show that the unknown father of the applicant’s two children had been in effect providing care or support to the children, or had been in any way actually involved in their life. While the Court does not exclude the possibility that the situation may be different in other circumstances of single parents of children with legally unestablished ties to both parents, where officially unknown fathers would in reality support their children, the Government have not shown, in the particular circumstances of the present case, that there were convincing reasons unrelated to the applicant’s family status or to her sex to offset the discriminatory effect on the applicant’s family of section 7(9) of the FACA. The Court reiterates in particular that very weighty reasons must be put forward before a difference of treatment based on the ground of sex or family status alone can be regarded as compatible with the Convention (see Ünal Tekeli v. Turkey, no. 29865/96, § 53, ECHR 2004 ‑ X (extracts), and, mutatis mutandis, Camp and Bourimi, cited above, § 38). The Court therefore concludes that the difference in treatment, of which the first applicant was a victim, amounted to discrimination on the grounds of both her family status and her sex. 126. There has therefore been a violation of Article 14 taken in conjunction with Article 8. APPLICATION OF ARTICLE 41 OF THE CONVENTION 127. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 128. In respect of pecuniary damage, the first applicant claimed EUR 522 per year for both children together (EUR 43,50 x 12 months), from the date of her request of the benefit at the national level (see paragraph 6 above) till the date of the Court’s judgment. She specified that that would represent EUR 2,088 for a four-year period of unpaid family allowance in respect of both children. She also claimed EUR 12,000 in respect of non-pecuniary damage. More specifically, she claimed EUR 3,500 in respect of non-pecuniary damage for each of her two minor children and EUR 5,000 for herself. 129. The Government submitted that those amounts were unjustified. As regards the claim in respect of pecuniary damage, the applicant was not eligible under the national law for the allowance in question and therefore she could not claim compensation for what was not due to her. As regards the claim in respect of non-pecuniary damage, the claim in respect of the two children was manifestly ill-founded as they were not applicants in the present case. As regards the claim in respect of the first applicant herself, it was excessive. 130. The Court does not discern any causal link between the violation found and the non-pecuniary damage alleged in respect of the first applicant’s two children; it therefore rejects this claim. 131. On the other hand, it awards the first applicant EUR 4,500 in respect of non-pecuniary damage and EUR 3,915 in respect of pecuniary damage, the latter for the period between 30 September 2013 and 31 March 2021, plus any tax that may be chargeable. Costs and expenses 132. The first applicant also claimed EUR 2,160 in respect of the costs and expenses incurred before the Court. 133. The Government submitted that this amount was excessive. 134. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,160 for the proceedings before the Court. This amount is comparable to the fees awarded in respect of applicants’ lawyers in recent cases against Bulgaria of comparable complexity (see, notably, Penchevi v. Bulgaria, no. 77818/12, § 89, 10 February 2015; Bulves AD v. Bulgaria, no. 3991/03, § 85, 22 January 2009, and Mutishev and Others v. Bulgaria, no. 18967/03, § 160, 3 December 2009 ). Default interest 135. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right for respect to private and family life) of the Convention in respect of the first applicant, finding that she had suffered discrimination on the grounds of both her family status and her sex. It noted in particular that, as maternity was determined by the act of birth, in the vast majority of cases it was only children’s paternity that could be unknown; as a mother of children with an unknown father, the applicant could not provide the required documents under the law, while a single father whose children’s mother had died would normally be able to do so. In the absence of convincing arguments by the Bulgarian authorities, the Court held that they had not provided a reasonable or objective justification for excluding the first applicant’s family from receiving the benefit. |
991 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | RELEVANT LEGAL FRAMEWORK Relevant domestic law and practice 44. The relevant provisions of the Code of Criminal Procedure (“the CCrP ”) concerning pre-trial detention are described in detail in the Court ’ s judgments in Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 83-102, 9 November 2010) and Muradverdiyev v. Azerbaijan (no. 16966/06, §§ 35 ‑ 49, 9 December 2010). 45. Under Article 428.2 of the CCrP, a minor is, for the purposes the criminal proceedings, a person who was below the age of eighteen years at the time of the commission of the crime in question. Remanding a suspect or accused minor in custody is allowed only when it was related to the commission of a “violent less serious crime”, a “serious crime” or a “particularly serious crime” (Article 434.1 of the CCrP ). Remanding a minor is allowed as an exceptional measure and for as short a period of time as possible ( müstəsna tədbir kimi və mümkün qədər qısa müddət ərzində ) (Article 434.2 of the CCrP ). 46. The relevant decisions of the Plenum of the Supreme Court concerning pre-trial detention are described in detail in the Court ’ s judgment in Allahverdiyev v. Azerbaijan (no. 49192/08, §§ 31 ‑ 32, 6 March 2014). Relevant international material 47. A number of relevant international documents are described in detail in the Court ’ s judgment in Rashad Hasanov and Others v. Azerbaijan (nos. 48653/13 and 3 others, §§ 79-81, 7 June 2018). 48. The United Nations Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989 and ratified by Azerbaijan on 13 August 1992, in so far as relevant, reads as follows: “Article 1 “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. ... Article 37 “States Parties shall ensure that: ... (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; ...;” 49. The part of General Comment No. 24 (CRC/C/GC/24) of the United Nations Committee on the Rights of the Child concerning children ’ s rights in the child justice system, dated 18 September 2019, reads: “ 85. The leading principles for the use of deprivation of liberty are: (a) the arrest, detention or imprisonment of a child is to be used only in conformity with the law, only as a measure of last resort and for the shortest appropriate period of time; and (b) no child is to be deprived of his or her liberty unlawfully or arbitrarily. Arrest is often the starting point of pre-trial detention, and States should ensure that the law places clear obligations on law-enforcement officers to apply article 37 in the context of arrest. States should further ensure that children are not held in transportation or in police cells, except as a measure of last resort and for the shortest period of time, and that they are not held with adults, except where that is in their best interests. Mechanisms for swift release to parents or appropriate adults should be prioritized. 86. The Committee notes with concern that, in many countries, children languish in pre-trial detention for months or even years, which constitutes a grave violation of article 37 (b) of the Convention. Pre-trial detention should not be used except in the most serious cases, and even then only after community placement has been carefully considered. Diversion at the pre-trial stage reduces the use of detention, but even where the child is to be tried in the child justice system, non-custodial measures should be carefully targeted to restrict the use of pre-trial detention. 87. The law should clearly state the criteria for the use of pre-trial detention, which should be primarily for ensuring appearance at the court proceedings and if the child poses an immediate danger to others. If the child is considered a danger (to himself or herself or others) child protection measures should be applied. Pre-trial detention should be subject to regular review and its duration limited by law. All actors in the child justice system should prioritize cases of children in pre-trial detention. 88. In application of the principle that deprivation of liberty should be imposed for the shortest appropriate period of time, States parties should provide regular opportunities to permit early release from custody, including police custody, into the care of parents or other appropriate adults. There should be discretion to release with or without conditions, such as reporting to an authorized person or place. The payment of monetary bail should not be a requirement, as most children cannot pay and because it discriminates against poor and marginalized families. Furthermore, where bail is set it means that there is a recognition in principle by the court that the child should be released, and other mechanisms can be used to secure attendance.” 50. In January and February 2012 the United Nations Committee on the Rights of the Child considered the combined third and fourth periodic report of Azerbaijan and adopted the concluding observations ( CRC/C/AZE/CO/3 ‑ 4 ) dated 12 March 2012. The relevant part of these concluding observations states as follows: “Administration of juvenile justice 75. While noting that the State party has undertaken the provision of some training programmes on juvenile justice for law-enforcement professionals and has initiated attempts to enact legislation on juvenile justice, the Committee remains deeply concerned at the lack of significant improvement regarding the State party ’ s juvenile justice system, despite the Committee ’ s recommendations in 1997 ( CRC/C/15/Add.77, paras. 28 and 49) and 2006 ( CRC/C/AZE/CO/2, para. 67). It remains particularly concerned that: (a) The State party has not adopted legislation on juvenile justice that addresses the situation of children in conflict with the law in accordance with the provisions of the Convention; (b) There are no law-enforcement personnel specialised in child-related investigations and in interrogation of children in conflict with the law; (c) There are offences for which persons under the age of 18 are tried as adults; (d) Persons under the age of 18 are often held in pre-trial detention for long periods and are not always detained separately from adults, particularly in the case of female detainees; (e) Alternatives to the deprivation of liberty are not sufficiently considered and applied, and persons under the age of 18 can be sentenced to detention for a period of up to 10 years; (f) The conditions of detention are often poor and inadequate, and overcrowding is frequently a serious problem; (g) Recovery, assistance and reintegration services for persons under the age of 18 in conflict with the law are insufficient. 76. The Committee reiterates its previous recommendations and urges the State party to bring the system of juvenile justice fully into line with the Convention, in particular articles 37, 40 and 39; with other United Nations standards in the field of juvenile justice, including the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty and the Guidelines for Action on Children in the Criminal Justice System; and with the recommendations of the Committee made at its day of general discussion on juvenile justice (CRC/C/46, paras. 203-238). In this regard, the Committee recommends that the State party: ... (c) Take all necessary measures to ensure that persons under the age of 18 are deprived of liberty only as a last resort and for the shortest appropriate period of time, in particular by developing and implementing alternatives to custodial sentences, including the establishment of diversion centres and/or legal clinics for children in conflict with the law; ...” THE LAW JOINDER OF THE APPLICATIONS 51. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment, pursuant to Rule 42 § 1 of the Rules of the Court. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 52. Relying on Article 5 § 3 of the Convention, the applicants complained that the domestic courts had failed to justify the need for their pre-trial detention and to provide reasons for their continued detention. Article 5 § 3 of the Convention reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” Admissibility 53. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions 54. The applicants maintained that the domestic courts had failed to provide relevant and sufficient reasons justifying their pre-trial detention. In particular, they submitted that the domestic courts had merely quoted the relevant legal provisions, without assessing their particular circumstances. 55. The Government contested the applicants ’ submissions, pointing out that the domestic courts had correctly assessed the applicants ’ situation and had delivered justified decisions on their pre-trial detention. They furthermore submitted that the domestic courts had provided relevant and sufficient reasons justifying the need for the applicants ’ continued pre-trial detention. The Court ’ s assessment 56. The Court refers to the general principles established in its case-law and set out in the judgment Buzadji v. the Republic of Moldova [GC] (no. 23755/07, §§ 84-91, 5 July 2016), which are equally pertinent to the present case. 57. As regards the period to be taken into consideration for the purposes of Article 5 § 3, the Court notes that this period commenced on 7 March 2013, when the applicants were arrested, and ended on 6 May 2014, when the Baku Court of Serious Crimes convicted them. Thus, the applicants were both held in pre-trial detention for one year, one month and twenty nine days in total. 58. The Court notes that the applicants ’ pre-trial detention was extended by a number of decisions delivered by the Nasimi District Court and the Baku Court of Appeal, which also dismissed the applicants ’ requests to be placed under house arrest rather than in pre-trial detention (see paragraphs 17-24 and 26-35 above). In that connection, the Court observes that both the first-instance court and the appellate court used a standard template. In particular, the domestic courts limited themselves to repeating a number of grounds for detention in an abstract and stereotyped way, without giving any reasons why they considered those grounds relevant to the applicants ’ cases. They also failed to mention any case-specific facts relevant to those grounds and to substantiate them with relevant and sufficient reasons (see Farhad Aliyev v. Azerbaijan, no. 37138/06, §§ 191 ‑ 94, 9 November 2010; Muradverdiyev v. Azerbaijan, no. 16966/06, §§ 87-91, 9 December 2010; and Zayidov v. Azerbaijan, no. 11948/08, §§ 64-68, 20 February 2014 ). The Court also finds it striking that the domestic courts relied on the first applicant ’ s way of life and links with foreign States as grounds for his continued detention, without providing any explanation or information in support of their reasoning (see paragraphs 20 and 22 above). 59. The Court notes that the domestic courts also cited irrelevant grounds when they extended the applicants ’ pre-trial detention. In particular, they stated that more time was needed to complete the investigation (see paragraphs 20, 23, 26 and 33 above). However, the Court reiterates that, under Article 5 § 3, grounds such as the need to implement further investigative measures, or the fact that proceedings have not yet been completed, do not correspond to any of the acceptable reasons for detaining a person pending trial (see Allahverdiyev v. Azerbaijan, no. 49192/08, § 60, 6 March 2014, and Mammadov and Others v. Azerbaijan, no. 35432/07, § 99, 21 February 2019). 60. The Court also cannot overlook the fact that the domestic courts completely disregarded the second applicant ’ s age in their decisions extending his pre-trial detention. In that connection, the Court notes that the second applicant ’ s pre-trial detention as a minor should have been considered as a measure of last resort and for the shortest appropriate period of time in accordance with Azerbaijan ’ s international obligations (see paragraphs 48-50 above) and Article 434.2 of the CCrP (see paragraph 45 above). However, the domestic courts did not even try to elaborate in their decisions on why this exceptional measure should have been taken in respect of the second applicant (compare Nart v. Turkey, no. 20817/04, § 33, 6 May 2008; Korneykova v. Ukraine, no. 39884/05, § 46, 19 January 2012; and Mahmut Öz v. Turkey, no. 6840/08, § 36, 3 July 2012). 61. In view of the foregoing considerations, the Court concludes that, by using a standard formula merely listing the grounds for detention without addressing the specific facts of the applicants ’ cases, and by citing irrelevant grounds, the authorities failed to give “relevant” and “sufficient” reasons to justify the need for the extension of the applicants ’ pre-trial detention. 62. Accordingly, there has been a violation of Article 5 § 3 of the Convention. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 5 § 3 OF THE CONVENTION 63. The applicants argued under Article 18 of the Convention that their Convention rights had been restricted for purposes other than those prescribed in the Convention. Article 18 provides: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” Admissibility 64. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions 65. The applicants submitted that their arrest and detention had been politically motivated and had been applied with the intention of punishing and silencing them as NIDA members. In that connection, they submitted that they had actively participated in protests against deaths of soldiers in the Azerbaijani army and that a number of members of NIDA had been arrested and detained over the previous few years on account of their activities. 66. The Government ’ s submissions were exactly the same as those that they had made in Rashad Hasanov and Others v. Azerbaijan (nos. 48653/13 and 3 others, §§ 114-15, 7 June 2018). The Court ’ s assessment 67. The Court will examine the applicants ’ complaint in the light of the relevant general principles set out by the Grand Chamber in its judgments in Merabishvili v. Georgia ([GC], no. 72508/13, §§ 287-317, 28 November 2017) and Navalnyy v. Russia ([GC], nos. 29580/12 and 4 Others, §§ 164 ‑ 165, 15 November 2018), as well as in the light of the Grand Chamber ’ s findings in its judgment in Selahattin Demirtaş v. Turkey (no. 2) ([GC], no. 14305/17, §§ 425, 429 and 436, 22 December 2020). 68. The Court considers at the outset that in the present application the complaint under Article 18 constitutes a fundamental aspect of the case that has not been addressed above in relation to Article 5 § 3 and merits a separate examination. 69. The Court furthermore observes that the circumstances of the present case and the complaint raised under Article 18 of the Convention by the applicants are similar to those already examined by the Court in the case of Rashad Hasanov and Others ( in which the Court found a violation of Article 18 of the Convention, taken in conjunction with Article 5). In particular, the applicants in the present case and the four applicants in the case of Rashad Hasanov and Others were arrested and detained mainly on the basis of the same criminal charges and were subsequently prosecuted and convicted within the framework of the same criminal proceedings (see Rashad Hasanov and Others, cited above, §§ 5-12 and §§ 65-66 ). 70. However, unlike in the case of Rashad Hasanov and Others, in the present case the Court was not called upon to examine whether the applicants were deprived of their liberty in the absence of a “reasonable suspicion” of their having committed a criminal offence, as the applicants did not appeal the original decisions depriving them of their liberty (see paragraphs 9 and 13 above) and did not raise this complaint in their appeals against the extension of their pre-trial detention, and thus did not exhaust domestic remedies in this regard. The present case should therefore be distinguished from cases in which an applicant ’ s right or freedom was restricted for a purpose that was not prescribed by the Convention; in those cases no issue arose in respect of a potential plurality of purposes (compare, for example, Rashad Hasanov and Others, cited above, § 119; Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, § 206, 20 September 2018; and Navalnyy, cited above, § 166). In the present case the Court must deal with the issue of plurality of purposes in the examination of the applicants ’ complaint under Article 18 of the Convention. The Court will thus examine whether the domestic authorities ’ decisions to keep the applicants in pre-trial detention also pursued an ulterior purpose, and, if that is the case, whether that ulterior purpose was the predominant purpose of the restriction of the applicants ’ right to liberty ( compare Merabishvili, cited above, §§ 318 ‑ 54 ). 71. As regards the question of whether the applicants ’ continued pre-trial detention pursued an ulterior purpose, the Court has already found in the case of Rashad Hasanov and Others ( cited above, §§ 122 ‑ 24 ) that the joint public statement of 8 March 2013 issued by the Prosecutor General ’ s Office and the MNS clearly targeted NIDA and its members, stating that “illegal attempts to undermine the social-political stability established in the country have recently been made by some radical destructive forces”. It is also clear from the above-mentioned statement that from the very beginning of the criminal proceedings, within the framework of which the applicants were kept in pre ‑ trial detention, the law-enforcement authorities tried to link the applicants ’ alleged possession of narcotic substances and Molotov cocktails to their membership in NIDA by stating, without any reservation, that “ since mid-2012 all three individuals, being addicted to narcotic substances and having become members of NIDA through the Internet, had actively participated in a number of the organisation ’ s illegal activities” (see paragraph 14 above) (see Rashad Hasanov and Others, cited above, § 122 ). 72. The Court furthermore held that the prosecution authorities intended to demonstrate that NIDA and its members were “destructive forces” and an organisation carrying out “a number of illegal activities”, solely relying on the fact that narcotic substances and Molotov cocktails had allegedly been found in the flats of NIDA members (ibid., § 123 ). 73. The Court also considers that the institution of criminal proceedings against the applicants by the prosecuting authorities and their subsequent pre-trial detention were used by the domestic authorities to prevent the organisation of further protests against the government. In that connection, the Court attaches weight to the timing of the institution of criminal proceedings against the applicants on the eve of the demonstration scheduled for 10 March 2013, following a series of demonstrations against the government in which the applicants and other members of NIDA had actively participated (compare Mammadli v. Azerbaijan, no. 47145/14, § 102, 19 April 2018, and Ibrahimov and Mammadov v. Azerbaijan, nos. 63571/16 and 5 others, § 153, 13 February 2020 ). The Court also does not lose sight of the fact that the prosecuting authorities in their statement of 8 March 2013 tried to portray twenty-eight leaflets worded “democracy urgently needed, tel : + 994, address: Azerbaijan” ( təcili demokratiya tələb olunur, tel : + 994, ünvan : Azərbaycan ), found in the first applicant ’ s flat, as illegal material proving the applicants ’ intention to incite violence and civil unrest during the unlawful demonstration scheduled for 10 March 2013 (see paragraph 14 above). 74. The Court considers that the above ‑ mentioned elements are sufficient to enable it to conclude that there was an ulterior purpose in the applicants ’ pre-trial detention; namely, it was aiming at punishing and silencing NIDA members for their active involvement in the demonstrations held against the government regarding the deaths of soldiers serving in the army. 75. The Court must now determine whether the ulterior purpose in question was the predominant purpose of the restriction of the applicants ’ right to liberty. It reiterates that precisely which purpose is predominant in a given case depends on all the relevant circumstances. In assessing that point, the Court will have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, and will bear in mind the fact that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law (see Merabishvili, cited above, § 307). 76. In that regard, the applicants ’ case should be viewed against the backdrop of the arbitrary arrest and detention of government critics, civil society activists and human ‑ rights defenders in the country. The Court points out that in the case of Aliyev (cited above, § 223) it found that its judgments in a series of similar cases reflected a pattern of arbitrary arrest and detention of government critics, civil society activists and human-rights defenders through retaliatory prosecutions and misuse of the criminal law in breach of Article 18. The Court reaffirmed this finding in its recent judgments relating to the arrest and detention of civil society activists, including members of NIDA (see Natig Jafarov v. Azerbaijan, no. 64581/16, §§ 64-70, 7 November 2019; Ibrahimov and Mammadov, cited above, §§ 151-58; and Khadija Ismayilova v. Azerbaijan (no. 2), no. 30778/15, §§ 113-20, 27 February 2020) and considers that the applicants ’ situation in the present case reflects this pattern. 77. The Court further notes that the authorities apparently attached utmost importance to their actions targeting NIDA as an organisation and its administration. It therefore appears that the institution of criminal proceedings against the applicants and their subsequent pre-trial detention were used by the domestic authorities to prevent the organisation of further protests against the government regarding deaths of soldiers serving in the army (see paragraph 73 above) and, also, to paralyse NIDA ’ s activities through the subsequent arrest and detention of four board members of NIDA in March and April 2013. The Court has already found that their arrest and detention had been in breach of Article 5 § 1 of the Convention and Article 18 of the Convention in conjunction with Article 5 (see Rashad Hasanov and Others, cited above, §§ 108 and 127 ). All of the above points to a predominance of the ulterior purpose pursued by the authorities in the applicants ’ case. 78. This is also seen in the way that the domestic courts handled the extension of the applicants ’ pre-trial detention. In particular, the domestic courts did not solely fail to give “relevant” and “sufficient” reasons to justify the need for the extension of the applicants ’ pre-trial detention, but also completely ignored the second applicant ’ s age – a major element which, if it had been taken into account, would probably have resulted in his rapid release from pre ‑ trial detention (see paragraph 60 above). 79. Bearing in mind all the circumstances of the case, the Court is satisfied that the ulterior purpose of the restriction of the applicants ’ liberty resulting in their continued pre-trial detention constituted the predominant purpose, which was to punish and silence NIDA members for their active involvement in the demonstrations held against the government regarding deaths of soldiers serving in the army. 80. There has accordingly been a violation of Article 18 of the Convention, taken in conjunction with Article 5 § 3. APPLICATION OF ARTICLE 41 OF THE CONVENTION 81. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” DamagePecuniary damage Pecuniary damage Pecuniary damage 82. The second applicant claimed 124,000 euros (EUR) in respect of pecuniary damage. In that connection, he submitted that 121,391 US dollars (USD) belonging to his father had been taken by the law-enforcement authorities during the search carried out of his flat and that the remaining part of the claimed amount corresponded to the sum that his family had spent on sending him food and regularly visiting him in prison. 83. The Government asked the Court to reject the claim. 84. As to the part of the part of the claim concerning the amount of money taken by the law-enforcement authorities during the search, the Court notes that the present application does not concern the lawfulness of the search in question. Moreover, the second applicant himself stated that the money in question had belonged to his father, who is not an applicant in the present case before the Court. Accordingly, the Court does not discern any causal link between the violations found and the pecuniary damage alleged. 85. As regards the part of the claim concerning the sum that his family had spent on sending him food and regularly visiting him in prison, even assuming a causal link between the pecuniary damage alleged and the violations found, the Court notes that the second applicant did not submit relevant documentary evidence supporting this claim. 86. Accordingly, it rejects the second applicant ’ s claims in respect of pecuniary damage. Non-pecuniary damage 87. Under this head, the first applicant claimed EUR 25,000 and the second applicant EUR 100,000. 88. The Government submitted that the amounts claimed by the applicants were unsubstantiated and excessive. They furthermore submitted that 10,000 Azerbaijani manats (AZN) would constitute reasonable compensation for the non ‑ pecuniary damage allegedly sustained by the applicants. 89. The Court considers that the applicants have suffered non ‑ pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant the sum of EUR 20,000 under this head, plus any tax that may be chargeable on this amount. Costs and expenses 90. The first applicant claimed EUR 2,000 and the second applicant claimed EUR 10,000 for legal services incurred in the proceedings before the Court and the domestic courts. They submitted the relevant contracts concluded with their representatives. The second applicant asked that the compensation in respect of costs and expenses be paid directly into his representative ’ s bank account. 91. The Government considered that the amounts claimed by the applicants were excessive. In their view, AZN 1,000 would constitute reasonable compensation for costs and expenses in respect of the first applicant and AZN 1,500 in respect of the second applicant. 92. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the amount of work carried out by the applicants ’ representatives, the Court considers it reasonable to award the sum of EUR 1,500 to the first applicant and the sum of EUR 2,000 to the second applicant, covering costs under all heads, plus any tax that may be chargeable to the applicants. The Court also specifies that the amount awarded in respect of the second applicant is to be paid directly into the bank account of his representative. Default interest 93. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 5 § 3 of the Convention, finding that the domestic courts had failed to give “relevant” and “sufficient” reasons to justify the need for extending the applicants’ pre-trial detention. The Court also held that there had been a violation of Article 18 of the Convention in conjunction with Article 5 § 3 in the present case. In particulier, bearing in mind all the circumstances of the case, it was satisfied that the ulterior purpose of the restriction of the applicants’ liberty resulting in their continued pre-trial detention constituted the predominant purpose, which was to punish and silence them for their active involvement in the demonstrations held against the government regarding deaths of soldiers. |
821 | Right to education (Article 2 of Protocol No. 1) | II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS 71. The relevant domestic law and practice are described in Gherghina v. Romania (( dec. ) [GC], no. 42219/7, §§ 34-56, ECHR 2015). 72. The relevant international materials are described in Çam v. Turkey, no. 51500/08, §§ 37-38, 23 February 2016, and Guberina v. Croatia, no. 23682/13, §§ 34-42, ECHR 2016). THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION TAKEN ALONE OR TOGETHER WITH ARTICLE 14 OF THE CONVENTION 73. The applicants mainly complained that the authorities had failed to take the requisite measures in compliance with their obligations under national law and the Convention to ensure that the first applicant ’ s physical integrity and dignity were respected at school and that he enjoyed the right to quality education without discrimination. They relied on Articles 3, 8, 13 and 14 of the Convention, on Article 2 of Protocol No. 1 to the Convention and on Article 1 of Protocol No. 12 to the Convention. 74. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine these complaints from the standpoint of Article 8 of the Convention and Article 2 of Protocol No. 1, read alone and in conjunction with Article 14 of the Convention (see Gherghina v. Romania ( dec. ) [GC], no. 42219/07, § 59, ECHR 2015). The provisions in question read as follows: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 2 of Protocol No. 1 “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” A. Admissibility 1. The parties ’ observations 75. The Government argued that the applicants had failed to exhaust domestic remedies. They pointed out that several relevant sets of proceedings were still pending when the observations had been submitted, on 23 December 2014 and 1 September 2017 respectively. Moreover, they considered that the length of the proceedings in case no. 14001/3/2014 (see paragraph 56 above) had been reasonable and did not render the remedy ineffective in practice, in so far as the applicants had raised several additional complaints throughout the proceedings and during those proceedings had successfully made use of the interim injunction procedure (see paragraph 63 above). 76. The applicants argued that the length of the proceedings initiated by them rendered those remedies ineffective, at least in practice. 2. The Court ’ s assessment 77. The Court makes reference to the general principles it has developed in its case-law concerning the exhaustion of domestic remedies (see Gherghina, cited above, §§ 83-89). 78. The Court considers that the Government ’ s objection is closely linked to the substance of this complaint and decides accordingly to join it to the merits. 79. The Court also notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ observations (a) The applicants 80. The applicants reiterated that the State authorities had an obligation to adapt mainstream schools in order to include children with disabilities. However, despite the abundant legislation on the matter, the situation remained confusing, with multiple authorities that had overlapping responsibilities and were insufficiently regulated, with the result that children integrated in mainstream schools did not get the support they were formally entitled to. The applicants also argued that the assistance received by the first applicant in school had been superficial and that the schools lacked specially adapted curricula and timetables and had been unable to provide him with the proper therapy and assistance despite the court decisions ordering them to do so, which remained unenforced. 81. The applicants contended that the concessions made to the first applicant in school, as well as the good grades he received, were mainly meant to keep him busy in class in the absence of individualised assistance from the teacher. For instance, they submitted that the first applicant had been allowed to use his tablet in class, but that the teacher never verified that he was actually using it for school purposes and not to play games. The school had also exempted him from the attendance requirement, but had never made arrangements to help him make up for his long absences. 82. The applicants further contended that the authorities ’ failure to assist the first applicant amounted to a de facto expulsion from school, and implicitly a denial of education. However, they observed that their case was not exceptional, that children with disabilities were more likely to be segregated in special schools where they received education of inferior standard, and that the lack of inclusive education was a systemic problem in the respondent State. Lastly, they reiterated the Commissioner ’ s findings concerning inclusive education after his 2013 visit to Romania, and in particular the overreliance on special schools; the low level of attendance in mainstream schools; the high drop-out rates and the poor data collection concerning the education of children with disabilities; the lack of trained teachers and appropriate teaching methods; the lack of funding for assisting pupils with disabilities, which often forced the parents to bear the costs; the reported practice of mainstream schools refusing enrolment to children with disabilities; and the ill-treatment of children with a disability by their educators and peers. The applicants concluded that this information offered sufficient prima facie evidence of discrimination in the present case. They further relied on the findings of the UN Committee on the Rights of the Child (2017 report), the Special Rapporteur on extreme poverty and human rights (report on the mission to Romania, 8 April 2016), the European Committee of Social Rights (2016 report), UNICEF (2015 report), and on the Government ’ s Disability Strategy 2016-2020. 83. Lastly, the applicants reiterated that accessibility was a gradual and anticipatory process by nature and that the authorities did not have to wait until a student with special needs requested it. They argued that the respondent State had had a duty to render school buildings and public infrastructure accessible since as far back as 1999, under Government Ordinance no. 102/1999. However, most of the improvements had come too late, when the applicant had already changed schools (specially adapted toilets, desks in the classrooms, stairlifts ). (b) The Government 84. The Government agreed that the right of access to education for children with a disability required that a system adapted to their needs be put in place. However, such a system could not function without the cooperation of all interested parties. On this point they reiterated that on several occasions the second applicant had failed to cooperate with the authorities or to bring her child to the activities organised for him by those authorities, had behaved improperly on school premises and had disobeyed the school rules. 85. The Government admitted that the local authorities had been late in complying with their legal obligation to render the school buildings accessible, and submitted that this was caused mainly by a lack of resources and by the other demands on the local budget. They pointed out that the school administration had compensated for those deficiencies by making reasonable accommodation for the first applicant ’ s benefit, by providing access ramps and gates for wheelchair access, asphalt in the school yard, a specially adapted toilet, air-conditioning in his classroom, and a specially adapted school desk. 86. They further admitted that it would be desirable to appoint a personal assistant after consultation with the family of a child with disabilities. However, they urged the Court to take into account the statements made by the persons who worked as personal assistants and the difficulties they had encountered in cooperating with the second applicant. 87. The Government accepted that not all the second applicant ’ s demands could be met, but pointed out that the authorities had to manage the budget in such a way as to cater not only to the applicants ’ needs, but also to the needs of the rest of the population dependent on State resources. Relying on McIntyre v. the United Kingdom (no. 29046/95, Commission decision of 21 October 1998, unreported) and Groza v. Romania (( dec. ), no. 31017/05, 21 February 2012), the Government argued that the measures taken by the authorities were proportionate to the legitimate aim pursued. 88. Referring to Article 14 of the Convention, the Government further argued that the authorities had ensured that the first applicant had access to education on an equal basis with pupils who did not have disabilities. The authorities had adapted the school programme to his needs and provided both educational and physical resources to assist him in school. (c) The third parties ’ comments 89. The Court received submissions from a number of third-party interveners. They all referred to the international standards for the protection of persons with disabilities, and in particular the UN Convention on the Rights of Persons with Disabilities (CRPD), General Comments nos. 4 and 5, the Social Charter and other Council of Europe standard-setting papers or recommendations, as well as similar legislation from other member States. They emphasised the need for inclusive education, which determined lifelong patterns of social inclusion. Furthermore, they stressed that in the field of education States had a positive obligation to make reasonable accommodation for children with disabilities. They pointed out that a wide gap still existed between standards in the field of education and the reality in many countries, including Council of Europe member States. 90. The Commissioner reiterated that children with disabilities were one of the groups most affected by school segregation, and that inclusion in mainstream education was often denied to these children on account of a lack of sufficient resources to provide individual support, the non- accessibility of the school environment, and prejudice, including on the part of school administrations, educators, peers and the families of non- disabled children. Although, according to the official statistics for 2013 in the respondent State, 60% of children with a disability were in mainstream education, other reliable sources indicated that the rate of inclusion was as low as 38%. On this point, the CEDCD submitted that out of 70,600 children with disabilities registered in Romania at the time of the submission of its observations, 31,486 were segregated in special schools and 17,975 children were out of school. 91. The Commissioner further reiterated that inclusion in mainstream education required reasonable accommodation and adequate and genuine support. He submitted that the implementation of laws on accessibility was often unduly delayed and not sufficiently monitored. In his view, the resulting lack of legal certainty, coupled with a widespread lack of understanding of the right to inclusive education, made it difficult for parents to challenge decisions infringing the right to education of their children. On this point he stressed that promptness and diligence were elements of particular relevance when considering whether a remedy in respect of a violation of children ’ s rights, such as the right to education, could be considered effective. 92. While admitting that the complaint lodged with the NCAD did not represent an effective remedy in this sphere, the CEDCD presented three examples of successful applications before that body in which teachers, school principals and even the parents of the victim ’ s classmates had been sanctioned for discriminating against children with disabilities and trying to bully them out of mainstream schools. 93. The United Nations Special Rapporteur on the rights of persons with disabilities reiterated that persons with disabilities could not effectively enjoy their right to education without an accessible environment, including schools and other places of education, and without accessible public transport, services and information and communications technologies. Furthermore, the authorities had an immediate obligation to provide reasonable accommodation from the moment it was requested; this could serve as a temporary solution for an individual when accessibility was lacking. The Special Rapporteur referred to the following as examples of reasonable accommodation in education: providing mobile ramps to enable access to the facilities; changing the location of a class; customising the timing of studies; adapting or acquiring the necessary equipment to enable persons with disabilities to attain and maintain maximum independence, including full physical and mental capacity; and allowing support persons (personal assistants, parents or any other person of their choice) to accompany them and assist during lessons. The Special Rapporteur also argued that the availability of supports should be considered in the light of the larger pool of resources available in the education, social protection and health systems and not limited to resources available at the educational institution in question. 94. In its submissions, Amnesty International referred to the standards developed by other jurisdictions in the field of inclusive education. The United States Supreme Court, in Endrew F. v. Douglas County School District RE-1, had ruled that simply passing a child with disabilities from grade level to grade level with no actual educational benefit was not sufficient under the relevant legislation. In Hurst v. State of Queensland, the Federal Court of Australia had found that teaching English and English sign language to a child with a hearing impairment whose first language was Auslan (Australian sign language) did not afford the child adequate conditions to enable her to learn to her full potential, and considered that the child in question would suffer serious disadvantage if she was required to simply cope with the conditions imposed. Lastly, the House of Lords decided in Regina v. East Sussex County Council Ex Parte Tandy, HL 21 May 1998, that when assessing the appropriate educational needs for a student with disabilities, the local authority must not consider its financial constraints as a reason not to provide appropriate education. 95. The RREI Latinoamerica presented case-law from the Inter- American Court of Human Rights according to which disability was to be assessed under a social model, as required by the CRPD, and not under a medical model. In particular, in the case of Sebastián Furlán v. Argentina the Inter-American Court had stated that if the social model for disability was taken into account, disability was not only defined by the presence of a physical, mental, intellectual or sensory impairment, but was related to the barriers or limitations that existed socially for persons to exercise their rights effectively. Furthermore, in 2016 the Inter-American Court of Human Rights had ordered a precautionary measure in favour of a twelve-year-old girl with disabilities, ordering Argentina to ensure and protect her right to life, physical integrity and health, as it found that on several occasions the medical treatments that the child needed in order to improve her health and attend school had been suspended (Precautionary measure no. 376/15 (Resolution 2016), published on 7 July 2016). 2. The Court ’ s assessment (a) General principles 96. The Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III, and Di Trizio v. Switzerland, no. 7186/09, § 63, 2 February 2016). 97. The Court further observes that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests (see Dickson v. the United Kingdom [GC], no. 44362/04, § 70, ECHR 2007 ‑ V). 98. The Court also makes reference to the general principles concerning the right to education, as recently reiterated in Çam v. Turkey (no. 51500/08, § 52-53, 23 February 2016, with further references). Furthermore, it has already held that, in order to comply with the requirements of Article 14 of the Convention, States have an obligation to make reasonable accommodation in the case of people with disabilities (see Çam, cited above, §§ 54 and 65, with further references). (b) Application of those principles to the present case 99. The Court has already had the opportunity to examine the system put in place by the respondent State to allow people with disabilities to complain about alleged infringements of their rights (see Gherghina, decision cited above, §§ 94-115, and Popa v. Romania ( dec. ), no. 4238/09, §§ 53-56, 14 November 2017). It concluded that an action lodged by the aggrieved party before the domestic courts represented an effective remedy which needed to be exhausted. The Court sees no reason to depart from this finding in the present case. More particularly, it notes that the domestic courts examined the applicants ’ complaints exhaustively and gave judgment on all counts, allowing most of their claims and ordering the authorities to act upon them (see paragraphs 56 to 61 above). 100. The Court acknowledges the complexity of the matter brought before the domestic courts (see, mutatis mutandis, Popa, cited above, §§ 8 and 35). It also notes that the applicants lodged their main action with the wrong division of the County Court and then also modified it during the course of the proceedings (see paragraph 57 above). In this context the length of the proceedings, which started on 24 April 2014 (see paragraph 56 above) and ended almost four years later, on 7 February 2018 (see paragraph 61 above), cannot be attributed solely to the authorities, who, moreover, did not remain passive but accompanied the applicants to the best of their abilities. In particular, the courts gave interim instructions to the authorities and insisted on their full implementation (see paragraphs 63 to 68 above), and the authorities provided the first applicant with support and assistance in school (see, for instance, paragraphs 39 and 46 above), or made efforts to find and retain a suitable personal assistant for him (see, in particular, paragraphs 53 and 54 above). 101. The Court notes that the authorities recommended that the first applicant attend mainstream schools throughout his education (see paragraph 13 above). This assessment is in compliance with the international standards in the field, which recommend inclusive education for children with disabilities (see Çam, cited above, § 64, and Enver Şahin v. Turkey, no. 23065/12, § 62, 30 January 2018). 102. The third-party observations confirm the difficulties encountered by children with a disability owing to a lack of infrastructure and of reasonable accommodation (see, in particular, paragraphs 90 and 93 above). The Government also admitted in their observations that there were delays in ensuring the accessibility of school buildings (see paragraph 85 above). On this point the Court reiterates that inclusive education is widely accepted to be the most appropriate means of guaranteeing inclusion and non - discrimination in the field of education (see Çam, cited above, § 64, and Enver Şahin, cited above, § 62). Therefore, in the absence of accessibility of the physical environment prior to the integration of children with a disability in mainstream schools, the authorities have an obligation to provide reasonable accommodation from the moment it is requested (see paragraphs 93 and 98 above). However, this obligation may not impose a disproportionate or undue burden on the authorities (see Çam, cited above, § 65). Moreover, it is not for the Court to define the “reasonable accommodation” – which can take on different material and non-material forms – to be implemented in the educational sphere in response to the educational needs of persons with disabilities (see Enver Şahin, cited above, § 61). 103. In this context, the Court acknowledges, in the educational sphere, that reasonable accommodation may take a variety of forms, whether physical or non-physical, educational or organisational, in terms of the architectural accessibility of school buildings, teacher training, curricular adaptation or appropriate facilities (see Çam, cited above, § 66). These adjustments can serve as a temporary solution for an individual when accessibility is lacking. 104. That being said, the Court will now examine whether the domestic authorities had recourse to alternative solutions in order to accommodate the first applicant. 105. At the outset, the Court finds it important that the first applicant was never completely deprived of education as he continued to attend school, to be graded for his work, and to advance through the school curriculum (see, mutatis mutandis, Şanlısoy v. Turkey ( dec. ), no. 77023/12, § 60, 8 November 2016). 106. The Court further observes that the authorities were aware of their obligation to ensure access to education for the first applicant, an obligation which stemmed both from the national law and from the State ’ s international commitments (see paragraphs 71 and 72 above). Moreover, this obligation was consistently reiterated by the domestic courts in the proceedings brought by the applicants (see paragraphs 61 and 63 above). On this point, the Court notes that reasonable accommodation was made for the first applicant ’ s benefit, as highlighted by the Government in their submissions (see paragraphs 39 and 85 above). In particular, when alerted by the applicants to the lack of accessibility and of reasonable accommodation in school (see paragraph 56 above), the domestic courts ordered the local authorities to take concrete measures in the first applicant ’ s favour (see paragraph 58 above). The courts also gave interim orders compelling the authorities to make immediate accommodation for the first applicant in school (see paragraph 63 above). The Court observes that the domestic courts reacted quickly and adequately to changes in the first applicant ’ s situation and renewed their instructions to the administrative authorities whenever they found that the measures taken by those authorities were insufficient (see paragraph 68 above). 107. Furthermore, the Court acknowledges the difficulties encountered by the State in finding a suitable personal assistant for the first applicant (see paragraphs 52, 53 and 86 above). It cannot ignore the fact that some of these difficulties were created by the applicants themselves, and in particular by the second applicant, who, by insisting that the personal assistants perform tasks incompatible with their job description, jeopardised the relationship between the parties concerned (see paragraphs 52 and 53 above). It also notes that the authorities renewed their efforts to find a suitable personal assistant (see paragraph 54 above), thus striving to comply with the domestic courts ’ findings in that regard (see paragraphs 50, 58 (d) and 66 above). 108. The Court notes that the second applicant also rendered futile other measures put in place by the authorities in school, in particular, by refusing the speech therapy (see paragraphs 46 and 47 above), the assistance by a support teacher (see paragraphs 37 -39 above) and the physiotherapy and psychological counselling (see respectively paragraphs 44 and 45 above) organised in school for the first applicant, as well as the installation of a stairlift (see paragraph 33 above). 109. The Court emphasises that it is not its task to define the resources to be implemented in order to meet the educational needs of children with disabilities. The national authorities, by reason of their direct and continuous contact with the vital forces of their countries, are in principle better placed than an international court to evaluate local needs and conditions in this regard (see Çam, cited above, § 66). It is, however, important that those authorities take great care with the choices they make in this sphere, in view of the impact of those choices on persons with disabilities, whose particular vulnerability cannot be ignored. Bearing this in mind, the Court notes that, in the present case, the authorities did not turn a blind eye to the first applicant ’ s needs, but allocated resources to the schools attended by him in order to help accommodate his special requirements. It notes, for instance, that various adaptations were made to render his physical environment more accessible (see paragraphs 16, 25 - 26 and 30 - 33 above) and that support teachers and various therapists were assigned to him (see, for instance, paragraphs 37 -39, 42, 45 and 46 above). 110. Therefore, in the light of all the material before it, the Court is satisfied that the domestic authorities complied with their obligation to provide reasonable accommodation “not imposing a disproportionate or undue burden” and, within their margin of appreciation, to allocate resources in order to meet the educational needs of children with disabilities. 111. There has accordingly been no violation of Article 8 of the Convention or of Article 2 of Protocol No. 1 to the Convention taken alone or together with 14 of the Convention. In view of the above, it is not necessary to consider separately the Government ’ s preliminary objection (see paragraphs 75 and 78 above). II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 112. The applicants complained about the second applicant ’ s removal by the police from the school premises and the impact this incident had on the first applicant (see paragraph 69 above). They relied on Articles 3 and 8, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 113. The applicants argued that the police intervention had been neither proportionate nor gradual, in contradiction with the domestic requirements on the use of force by the police. The police officers treated the second applicant as if she had been a complete stranger trespassing on school property, thus ignoring the fact that, at that point, she had been providing personal assistance to her son on an almost daily basis for more than six years. They averred that the disproportionate character of the police intervention was emphasised by the gravity of the injuries caused to the second applicant, the relatively insignificant offence for which she had been sanctioned and the minor sanction applied. 114. The Government contended that the investigation had been effective and prompt. 115. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. In particular, the applicants failed to bring any evidence that the use of force by the police officers when removing the second applicant from the school premises had been disproportionate, or that the first applicant had been left without supervision in school during his mother ’ s absence. Moreover, the applicants failed to pursue their domestic complaints within the time-limits set by law, without bringing any evidence that the mechanism placed at their disposal would be ineffective. 116. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private and family life), taken alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention, and no violation of Article 2 (right to education) of Protocol No. 1 to the Convention, taken alone and in conjunction with Article 14, finding that the Romanian authorities had complied with their obligation to make reasonable accommodation for the first applicant by allocating resources to meet the educational needs of children with disabilities. |
411 | Deprivation of liberty / Restriction on the freedom of movement | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW 97. Section 6 of the Federal Law on Exit from and Entry into the Territory of the Russian Federation (FZ-114 of 15 August 1996, with amendments), in so far as relevant, reads as follows: “Upon arrival in and departure from the Russian Federation, foreign nationals or stateless persons are obliged to present valid documents confirming their identity and [which are] accepted as such by the Russian Federation, and a visa, unless this Federal Law, or a treaty concluded by the Russian Federation, or decrees by the President of the Russian Federation, provide otherwise.” 98. Section 14 of the State Border of the Russian Federation Act (FZ ‑ 4730-1 of 1 April 1993, with amendments), in so far as relevant, reads as follows: “Foreign nationals and stateless persons who do not possess the status of a person living or residing in the Russian Federation and who have crossed the State border [upon arrival] from the territory of a foreign State shall be [held responsible], in accordance with the Russian law, if there are indications that their actions [constitute] a criminal or administrative offence. Where there are no grounds for instituting criminal or administrative proceedings against ... violators of the State border, and if they do not enjoy the right to political asylum, ... the border authorities shall officially transfer them upon arrival to the authorities of the State from ... which they have crossed the [Russian] State border. If their transfer to the authorities of the foreign State is not envisioned by a treaty between the Russian Federation and that State, the border authorities shall deport them [to places] outside the territory of the Russian Federation ... designated by the border authorities.” 99. Section 4 of the Refugees Act provides, in so far as relevant, as follows: “1. An adult who has expressed a wish to be recognised as refugee shall lodge a written application, either in person or through a representative: ... 1 (2) with the Border Guard Service [the BGS] of the Federal Security Service ... at the border crossing point of the Russian Federation at the time when that person crosses the border ... ... 3. An application lodged with the Border Guard Service at the border crossing point ... shall be transmitted by [the BGS] to the ... migration authority ... within three days of the date of its being lodged. ... 5 (2) An application made by a person who is at a border crossing point ... shall be preliminarily examined by ... the migration authority ... within five days of the date of its receipt. ... 6. A decision to issue a certificate [to confirm the examination of an application for refugee status on the merits (“certificate”)] shall be taken ... by the migration authority. A decision to issue a certificate shall serve as grounds for recognising the person’s ... rights and for imposing obligations on him or her ... 7. Within twenty-four hours of that decision ... the migration authority ... shall send the certificate to the person or serve it on him or her ... The certificate is a document [that serves to identify] a person who has applied for refugee status. ... The certificate also serves as grounds for a person ... to receive a document authorising his placement in a temporary accommodation centre.” 100. Section 6 of the Refugees Act reads, in so far as relevant, as follows: “1. The person in receipt of the certificate ... has a right: 1 (1) to the services of a translator and an interpreter and to information on the procedure for the granting of refugee status; ... 1 (3) to receive a lump-sum allowance ... 1 (4) to receive from ... the migration authority a document authorising his or her placement in a temporary accommodation centre; ... 1 (6) to receive food and communal services at the temporary accommodation centre ... 1 (7) to receive medical and pharmacological aid ...” INTERNATIONAL LAW The 1951 United Nations Convention Relating to the Status of Refugees 101. Article 31 of the 1951 Convention reads as follows: “1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.” 102. Article 33 of the 1951 Convention provides: “1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” COMPARATIVE-LAW MATERIALS 103. According to the survey of the situation of asylum-seekers confined to a transit zone on the territory of a State pending the outcome of asylum proceedings in thirty-four Contracting Parties to the Convention made available to the Court, in seven of the thirty-four member States surveyed, namely the Czech Republic, France, Lithuania, Montenegro, the Netherlands, Portugal and Ukraine, the stay in a transit zone of persons who have applied for international protection is regarded under national law as a deprivation of liberty, whereas under the national law of eighteen of the thirty-four Contracting Parties, namely Albania, Austria, Azerbaijan, Bulgaria, Croatia, Estonia, Finland, Georgia, Germany, Greece, North Macedonia, Republic of Moldova, Poland, Romania, Serbia, Slovenia, Spain and the United Kingdom (England and Wales), such stay is not regarded as a deprivation of liberty. 104. In nine of the thirty-four Contracting Parties, namely Armenia, Belgium, Iceland, Liechtenstein, Luxembourg, Norway, San Marino, Slovakia and Sweden, there are no transit zones in either legal or practical terms in which asylum-seekers are confined pending the outcome of their asylum proceedings. 105. Twelve of the thirty-four Contracting Parties, namely Austria, Croatia, Czech Republic, France, Georgia, Greece, Lithuania, Montenegro, Netherlands, Portugal, Romania and Spain, have in place legal provisions and procedures specifically applicable to persons who have applied for international protection while in a transit zone at an airport or at a land or sea border point. THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 106. The applicants complained that their confinement in the transit zone of Sheremetyevo Airport had amounted to an unlawful deprivation of liberty, in breach of Article 5 § 1 of the Convention, the relevant parts of which read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” The Chamber judgment 107. The Chamber declared the complaint under Article 5 § 1 admissible and found that the applicants’ confinement in the transit zone of Sheremetyevo Airport had amounted to a de facto deprivation of liberty. 108. The Chamber further examined the issue of lawfulness of the applicants’ de facto deprivation of liberty. In the absence of any reference by the Government to any domestic legal provision capable of serving as a legal basis, the Chamber considered that the applicants’ lengthy confinement in the transit zone of Sheremetyevo Airport had not had any legal basis in the domestic law, in breach of the requirement of Article 5 § 1 of the Convention, and found a violation of that provision. The parties’ submissionsThe applicants The applicants The applicants 109. The applicants submitted that while in the airport transit zone they had been in the situation of asylum-seekers whose applications had not yet been considered. They had not had the option of entering a State other than the one they had fled and had been under the jurisdiction of Russia. During their lengthy stay in the airport transit zone they had been unable to enter Russian territory or receive visits from doctors and notaries; access to them by their lawyers had been conditional and occasionally denied; and the BGS had seized their passports. Accordingly, the applicants had not chosen to stay in the transit zone and thus could not be said to have validly consented to being deprived of their liberty. They concluded that their confinement in the transit zone had amounted to a de facto deprivation of liberty. 110. Regarding the compatibility of their de facto deprivation of liberty with Article 5 § 1, the applicants submitted that there had been no court or other official decision authorising their respective detention. In the absence of any legal procedure to assess the lawfulness or duration of their detention, the applicants had been “in a legal vacuum.” They concluded that their lengthy confinement in the airport transit zone for an indefinite and unforeseeable period in the absence of a specific legal provision justifying it and of judicial authorisation or review had not had any basis in domestic law, in breach of Article 5 § 1. 111. The applicants submitted that the subject of their complaint before the Court was not the Russian authorities’ refusal to grant them asylum. The thrust of their respective applications was “that their rights [had been] violated by the absence of legal regulations and by the authorities’ violation of the regulations that should have applied and their complete lack of consideration or intention to preserve human dignity.” 112. The applicants stated that they had lodged applications for refugee status and temporary asylum in compliance with Russian domestic law despite the lack of information about the procedure available in the airport transit zone and the fact that the BGS officers had only spoken Russian. The Russian authorities’ failure to treat the applicants as asylum-seekers and to provide them with examination certificates had deprived them of the opportunity to enjoy the rights guaranteed by the Refugees Act. The Government 113. The Government insisted that it was “vital to draw a distinction between genuine refugees and migrants”, the latter being persons moving to a third country for mainly economic reasons. In the Government’s view, the applicants had not met the refugee criteria laid down by the Geneva Convention as they had not arrived in Russia directly from the countries of the alleged risk, had not chosen it as a first safe country for the purposes of claiming asylum, had not applied for asylum in Russia immediately upon arrival there, and had not sought asylum in other countries beforehand. In the course of interviews by the Russian migration authorities, the applicants had not substantiated their allegations that their lives were endangered in the countries of origin but had referred to a poor economic situation. Allegations of possible risks had been raised only after the applicants had been put in contact with lawyers specialising in asylum cases. Accordingly, the applicants were not “genuine asylum-seekers” but “ordinary migrants” whose asylum applications had been “artificially created and had little prospects of success.” 114. The Government submitted that they should not be deemed responsible for difficulties that had been the result of the applicants’ own choices. The Court’s position in asylum-seekers’ cases encouraged migrants “to abuse the right to asylum”. 115. The Government insisted that a person under a State’s jurisdiction was not necessarily “at the hands of the authorities” and further stated that the applicants should have been well aware of the fact that they had not had the requisite documents and had not had valid grounds to enter Russia. By deliberately attempting to enter Russia without valid visas and grounds on which to be regarded as refugees, the applicants had breached Russian law and had validly consented to be deprived of their liberty. The fact that the Russian authorities had examined the applicants’ asylum applications did not mean they had had to stay in the airport transit zone as the prospects of success of those applications had been slim. They also referred to the margin of appreciation that States enjoyed in granting asylum. They concluded that Article 5 was inapplicable in the present case. 116. The Government further referred to a State’s “inherent sovereign right to control the entry and residence of aliens on its territory” and submitted that the applicants’ passports had not been seized. The applicants had not been subject to expulsion, deportation or extradition proceedings; therefore, there had been no deprivation of liberty as the applicants had been free to leave Russia at any time and eventually had done so. 117. They further submitted that if a State prohibited an alien from entering its territory, he or she was forced to leave the State. Should an applicant meeting the asylum-seeker criteria laid down by the Geneva Convention be forced to return to a country where he had been persecuted, an issue under Article 3 of the Convention could arise, but only if a relevant complaint was raised by that applicant. 118. The Government further argued that the Court had “invented” a new right under the Convention – which did not guarantee a right to asylum – imposing an obligation on States to allow anyone claiming to be an asylum-seeker to enter its territory unimpeded. They concluded that there had been no violation of Article 5 § 1 in the present case. Third-party intervenersThe UNHCR The UNHCR The UNHCR 119. The UNHCR, in their submissions, addressed the Russian domestic legal framework and practice applicable to the treatment of asylum-seekers in transit zones of airports in the Russian Federation and provided its interpretation of the relevant principles of international law. 120. Russian law did not contain any provisions addressing the grounds for or duration of stays in border areas and in transit zones or stipulating procedural safeguards for asylum-seekers at the borders; nor did it provide for the possibility of judicial review in respect of the situation of those stranded in a transit zone. The conditions of stay in airport transit zones were not regulated by domestic law. Russian law did not place responsibility on any State authority for ensuring minimum basic care for asylum-seekers in transit zones. 121. Migration authorities had no staff in transit zones, which were under the full control of the BGS. The BGS did not make decisions to keep a person in the transit zone; rather, they simply did not allow the person to pass through passport control. They could also refuse, without giving reasons, to accept asylum applications. Asylum ‑ seekers in airport transit zones were deprived of the minimum rights guaranteed by the Refugees Act as they remained in legal limbo even after being issued with an examination certificate. They could not effectively exercise their right to appeal against a rejection at first instance of their application for refugee status. 122. Asylum-seekers stranded in transit zones were deprived of access to fresh air, privacy, food, and access to medical and social care. The period for which an asylum-seeker had to undergo such a dire lack of basic facilities could be prolonged as on average the complete asylum procedure, including appeals, could last between one and two years. 123. The UNHCR stated that, where applied, the detention of asylum ‑ seekers should be justified under the principles of necessity, reasonableness and proportionality, and should be subject to a series of important procedural safeguards – all of which were absent in the context of persons held in airport transit zones in the Russian Federation. The Government of Hungary 124. The Government of Hungary argued before the Grand Chamber that there was no “right to asylum-shopping” (that is, the right to choose a country in which to seek asylum) under current international law despite the fact that the UNHCR and “other organisations promoting refugee rights” advocated it. 125. According to the Government of Hungary, there was no right to be granted asylum. Article 14 of the Universal Declaration of Human Rights guaranteed the right to enjoy asylum; Article 12 § 2 of the International Covenant on Civil and Political Rights and Article 2 § 2 of Protocol No. 4 to the Convention proclaimed the right to leave one’s own country. Yet no right to admission to a country for the purposes of seeking asylum was recognised in international law. Asylum-shopping benefitted international organised crime and escalated the European “migration crisis.” The Convention did not “confer a right of admission to the territory and thus the full jurisdiction of the State”. The threshold for the application of Articles 3 and 5 and their standards left “ample room for interpretation in the light of Article 1 of the Convention.” The Court’s assessmentPreliminary considerations Preliminary considerations Preliminary considerations (a) The scope of the case 126. The Court takes note of the concerns expressed by the Russian and Hungarian Governments in their submissions and agrees that the present case must be seen in the context of the practical, administrative, budgetary and legal challenges that the member States face as a consequence of the influx of refugees and immigrants. However, contrary to the Russian and Hungarian Governments’ submissions before the Grand Chamber, in the Court’s view this case has little to do with the issue of whether a right to asylum as such or a right to asylum ‑ shopping exist under current international law. 127. The thrust of the Chamber’s findings was not the fact that none of the applicants had been granted asylum in Russia but the absence of a legal basis for their lengthy confinement in the airport transit area and the failure to take care of their essential needs pending the examination of their asylum applications. The Court would reiterate that the Convention has been created to set minimum standards. The right to have one’s liberty restricted only in accordance with the law and the right to humane conditions, if detained under State control, are minimum guarantees that should be available to those under the jurisdiction of all member States, despite the mounting “migration crisis” in Europe. 128. Accordingly, the Court’s task in the present case is to verify the respondent Government’s compliance with these Convention obligations. (b) Article 1 of the Convention 129. The first issue to be addressed is whether the applicants fell within Russian jurisdiction within the meaning of Article 1 of the Convention. The Court notes in this connection that during the events at issue the applicants were physically present on the territory of Russia and found themselves under the control of the Russian authorities. 130. The Court reiterates that an airport, including an international airport, located on the territory of a State is legally part of the territory of that State (see Amuur v. France, 25 June 1996, §§ 41 and 43-45, Reports of Judgments and Decisions 1996 ‑ III; Shamsa v. Poland, nos. 45355/99 and 45357/99, § 45, 27 November 2003; Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, § 68, 24 January 2008; Rashed v. the Czech Republic, no. 298/07, § 70, 27 November 2008; and Abou Amer v. Romania, no. 14521/03, § 39, 24 May 2011). 131. It is noteworthy that the Russian Government did not deny before the Grand Chamber that the transit zone of Sheremetyevo Airport was part of Russian territory; nor did they dispute that the applicants were under the control of the authorities throughout the relevant period (see paragraph 115 above). 132. The Court concludes that the applicants were within the jurisdiction of Russia during the events of the present case. Article 5 § 1 (a) Applicability of Article 5 § 1 (i) General principles 133. In proclaiming the “right to liberty”, paragraph 1 of Article 5 contemplates the physical liberty of the person. Accordingly, it is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4. Although the process of classification into one or other of these categories sometimes proves to be no easy task, in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 64, 15 December 2016, with further references). 134. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his or her specific situation in reality and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question (see Nada v. Switzerland [GC], no. 10593/08, § 225, ECHR 2012, and Gahramanov v. Azerbaijan (dec.), no. 26291/06, § 40, 15 October 2013). The difference between deprivation and restriction of liberty is one of degree or intensity and not one of nature or substance (see De Tommaso v. Italy [GC], no. 43395/09, § 80, 23 February 2017, with further references; see also Kasparov v. Russia, no. 53659/07, § 36, 11 October 2016). 135. The Court considers that in drawing the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of asylum-seekers, its approach should be practical and realistic, having regard to the present-day conditions and challenges. It is important in particular to recognise the States’ right, subject to their international obligations, to control their borders and to take measures against foreigners circumventing restrictions on immigration. 136. The question whether staying at airport international zones amounts to deprivation of liberty has been dealt with in a number of cases (see, among those: Amuur, cited above, § 43; Shamsa, cited above, § 47; Mogoş v. Romania (dec.), no. 20420/02, 6 May 2004; Mahdid and Haddar v. Austria (dec.), no. 74762/01, ECHR 2005-XIII (extracts); Riad and Idiab, cited above, § 68; Nolan and K. v. Russia, no. 2512/04, §§ 93-96, 12 February 2009; and Gahramanov, cited above, §§ 35-47). 137. The Court stated the following in the case of Amuur, at § 43: “Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centres for the detention of aliens pending deportation. Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention Relating to the Status of Refugees and the European Convention on Human Rights. States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum-seekers of the protection afforded by these conventions. Such holding should not be prolonged excessively, otherwise there would be a risk of it turning a mere restriction on liberty - inevitable with a view to organising the practical details of the alien’s repatriation or, where he has requested asylum, while his application for leave to enter the territory for that purpose is considered - into a deprivation of liberty. In that connection account should be taken of the fact that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country. Although by the force of circumstances the decision to order holding must necessarily be taken by the administrative or police authorities, its prolongation requires speedy review by the courts, the traditional guardians of personal liberties. Above all, such confinement must not deprive the asylum-seeker of the right to gain effective access to the procedure for determining refugee status.” 138. In determining the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of foreigners in airport transit zones and reception centres for the identification and registration of migrants, the factors taken into consideration by the Court may be summarised as follows: i) the applicants’ individual situation and their choices, ii) the applicable legal regime of the respective country and its purpose, iii) the relevant duration, especially in the light of the purpose and the procedural protection enjoyed by applicants pending the events, and iv) the nature and degree of the actual restrictions imposed on or experienced by the applicants (see the cases cited in the preceding three paragraphs). 139. The Court considers that the factors outlined above are also relevant, mutatis mutandis, in the present case. (ii) Application of those principles α ) The applicants’ individual situation and choices 140. The Court observes that all four applicants entered the airport involuntarily, but without any involvement of the Russian authorities, either because they had been denied entry into the country they wanted to go to or because they had been deported to Russia. Compelled by the circumstances, they all decided to seek asylum in Russia. While this fact in itself does not exclude the possibility of the applicants finding themselves in a situation of de facto deprivation of liberty after having entered, the Court considers that it is a relevant consideration, to be looked at in the light of all other circumstances of the case. 141. It is true that in a number of cases the Court stated that detention might violate Article 5 of the Convention even though the person concerned had agreed to it and emphasised that the right to liberty is too important for a person to lose the benefit of the protection of the Convention for the single reason that he gave himself up to be taken into detention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12; I.I. v. Bulgaria, no. 44082/98, §§ 84-87, 9 June 2005; Osypenko v. Ukraine, no. 4634/04, § 48, 9 November 2010; Venskutė v. Lithuania, no. 10645/08, § 72, 11 December 2012; and Buzadji v. Moldova [GC], no. 23755/07, §§ 106-10, 5 July 2016). Those cases, however, concerned situations where the law provided for deprivation of liberty or situations where the applicants had complied with an obligation, such as, among others, to enter a prison or a police station or submit to house arrest. The circumstances are not the same, in the Court’s view, where the applicants – as in the present case – had no relevant prior link to the State concerned and no obligation to which they acquiesced but requested admission to that State’s territory of their own initiative and sought asylum there. In such cases the starting point regarding the applicants’ individual position vis-à-vis the authorities is entirely different. 142. In the present case, having regard to the known facts about the applicants and their respective journeys and, notably, the fact that they did not arrive in Russia because of a direct and immediate danger for their life or health but rather due to specific circumstances of their travel routes, there is no doubt that they entered the Sheremetyevo airport involuntarily, but without the Russian authorities being involved. It is therefore clear that, at all events, the Russian authorities were entitled to do the necessary verifications and examine their claims before deciding whether or not to admit them. β ) The applicable legal regime, its purpose and the relevant duration in the light of that purpose and the attendant procedural protection 143. Second, it is also relevant that the rationale and purpose of the domestic legal regime applicable to the Sheremetyevo airport transit zone was to put in place a waiting area while the authorities decided whether to formally admit the asylum-seekers to Russia (see paragraphs 99 and 100 above). Albeit not decisive in itself, it is relevant to note that the Russian authorities did not seek to deprive the applicants of their liberty and that they denied them entry at once (see paragraphs 14, 20, 29 and 39 above). The applicants remained in the transit zone essentially because they awaited the outcome of their asylum proceedings (see paragraphs 46-96 above). 144. The right of States to control the entry of foreigners into their territory necessarily implies that admission authorisation may be conditional on compliance with relevant requirements. Therefore, absent other significant factors, the situation of an individual applying for entry and waiting for a short period for the verification of his or her right to enter cannot be described as deprivation of liberty imputable to the State, since in such cases the State authorities have undertaken vis-à-vis the individual no other steps than reacting to his or her wish to enter by carrying out the necessary verifications (see, mutatis mutandis, Gahramanov, cited above, §§ 35-47; see also Mahdid and Haddar, cited above, where the applicants’ asylum requests were dismissed in an airport transit zone within three days and the Court found that there had been no deprivation of liberty (taking into consideration additional factors, such as that the applicants were not under constant police control). 145. It is further relevant whether, in line with the purpose of the applicable legal regime, procedural guarantees concerning the processing of the applicants’ asylum claims and domestic provisions fixing the maximum duration of their stay in the transit zone existed and whether they were applied in the present case. 146. On the facts, the Court notes that the respondent Government were unable to point at any domestic provisions fixing the maximum duration of the applicants’ stay in the transit zone and that furthermore in disregard of the Russian domestic rules granting every asylum-seeker the right to be issued with an examination certificate and to be placed in temporary accommodation facilities pending examination of the asylum application (see paragraphs 99 and 100 above; compare Riad and Idiab, cited above, § 101), the applicants were essentially left to their own devices in the transit zone. The Russian authorities did not acknowledge that they were in any manner responsible for the applicants, thereby leaving the latter in a legal limbo without any possibility of challenging the measures restricting their liberty (see paragraph 44 above). While in the transit zone, all four applicants had little information regarding the outcome of their respective applications for refugee status and temporary asylum (see paragraphs 41-44 above). 147. In the Court’s case-law concerning confinement of aliens in an immigration context, the duration of the relevant restriction on movement and the link between the actions of the authorities and the restricted freedom may be elements affecting the classification of the situation as amounting to deprivation of liberty or not (see, mutatis mutandis, Amuur, cited above, § 43; Gahramanov, cited above, §§ 35-47; and Mahdid and Haddar, cited above). However, as long as the applicant’s stay in the transit zone does not exceed significantly the time needed for the examination of an asylum request and there are no exceptional circumstances, the duration in itself should not affect the Court’s analysis on the applicability of Article 5 in a decisive manner. That is particularly so where the individuals, while waiting for the processing of their asylum claims, benefitted from procedural rights and safeguards against excessive waiting periods. The presence of domestic legal regulation limiting the length of stay in the transit zone is of significant importance in this regard. 148. In the present case the processing and subsequent judicial examination of the applicants’ respective cases was anything but speedy, as Mr Z.A. spent seven months and nineteen days in the transit zone awaiting the outcome of his asylum proceedings (see paragraphs 46-55 above); Mr M.B. five months and one day (see paragraphs 57-64 above); Mr A.M. one year, nine months and at least twenty-eight days (see paragraph 66-82 above); and Mr Yasien seven months and twenty-two days (see paragraphs 83-95 above). The Court thus considers that the applicants’ situation was very seriously influenced by delays and inactions of the Russian authorities which were clearly attributable to them and were not justified by any legitimate reasons. 149. The Court would add that the case file contains no indication that the applicants in the present case failed to comply with the legal regulations in place or did not act in good faith at any time during their confinement in the transit zone or at any stage of the domestic legal proceedings by, for instance, complicating the examination of their asylum cases (see, by contrast, Mahdid and Haddar, cited above, where the applicants remained in the international zone of an airport after the rejection of their request for asylum and destroyed their documents in an attempt to force the Austrian authorities to accept them). γ ) The nature and degree of the actual restrictions imposed on or experienced by the applicants 150. The individuals staying at the Sheremetyevo airport transit zone were not permitted to leave in the direction of the remaining territory of Russia, the country where the zone was located (compare and contrast Mogoş, cited above). This is unsurprising having regard to the very purpose of the transit zone as a waiting area while the authorities decided whether to formally admit asylum-seekers to Russia. 151. The Court further observes, and this was not in dispute between the parties, that even though the applicants were largely left to their own devices within the perimeter of the transit zone, the restrictions on their liberty were nevertheless substantial given that the whole area was under the permanent control of the BSG, a branch of the FSB. The Court finds that, overall, the size of the area and the manner in which it was controlled were such that the applicants’ freedom of movement was restricted to a very significant degree, in a manner similar to that characteristic of certain types of light regime detention facilities. 152. The remaining question is whether the applicants could leave the transit zone in a direction other than the territory of Russia. 153. The Court recalls its reasoning in the case of Amuur (cited above), where it stated that “the mere fact that it is possible for asylum-seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on liberty” and noted that the possibility to leave “becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in” (ibid ., § 48). 154. In this regard, the Court observes that unlike in land border transit zones, in this particular case leaving the Sheremetyevo airport transit zone would have required planning, contacting aviation companies, purchasing tickets and possibly applying for a visa depending on the destination. The Court considers that the Government have failed to substantiate their assertion that despite these obstacles “the applicants were free to leave Russia at any time and go wherever they wished”. The practical and real possibility for the applicants to leave the airport transit zone and do so without a direct threat for their life or health, as known by or brought to the attention of the authorities at the relevant time, must be convincingly shown to exist. 155. In the light of this conclusion, the Court does not find it necessary to address the parties’ arguments relating to the merits of the applicants’ asylum requests. The Convention cannot be read as linking in such a manner the applicability of Article 5 to a separate issue concerning the authorities’ compliance with Article 3 (see Ilias and Ahmed [GC], no. 47287/15, §§ 244-46, 21 November 2019). δ ) Conclusion as regards the applicability of Article 5 156. The Court thus finds that, having regard in particular to the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the largely irregular character of the applicants’ stay in the Sheremetyevo airport transit zone, the excessive duration of such stay and considerable delays in domestic examination of the applicants’ asylum claims, the characteristics of the area in which the applicants were held and the control to which they were subjected during the relevant period of time and the fact that the applicants had no practical possibility of leaving the zone, the applicants were deprived of their liberty within the meaning of Article 5. Article 5 § 1 is therefore applicable. (b) Compatibility of the applicants’ deprivation of liberty with Article 5 § 1 of the Convention 157. The aim of the applicants’ deprivation of liberty was “to prevent [their] effecting an unauthorized entry into the country” and, therefore, it falls to be examined under the first limb of subparagraph Article 5 § 1 (f) (see Saadi v. the United Kingdom [GC], no. 13229/03, §§ 64-66, ECHR 2008). 158. The first question to be addressed is whether the detention was effected “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1 of the Convention. (i) General principles 159. Article 5 § 1 of the Convention delimits the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see, with further references, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 230, ECHR 2012). 160. Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Chahal v. the United Kingdom, 15 November 1996, § 73, Reports 1996 ‑ V). It is a necessary adjunct to this right that States are permitted to detain would-be immigrants who have applied for permission to enter, whether by way of asylum or not. Deprivation of liberty of asylum-seekers to prevent their unauthorised entry into a State’s territory is not in itself in contravention with the Convention (see Saadi, cited above, §§ 64 ‑ 65, and Suso Musa v. Malta, no. 42337/12, §§ 89-90, 23 July 2013). 161. Any deprivation of liberty, however, must be “in accordance with the procedure prescribed by law” that meets the “quality of law” criteria, as well as be free from arbitrariness. Where deprivation of liberty is concerned, it is essential that the general principle of legal certainty be satisfied and therefore that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (see Khlaifia and Others, cited above, § 92, with further references). Furthermore, the detention of a person constitutes a major interference with individual freedom and must always be subject to rigorous scrutiny. 162. The Court is fully conscious of the difficulties that member States may face during periods of massive arrivals of asylum-seekers at their borders. Subject to the prohibition of arbitrariness, the lawfulness requirement of that provision may be considered generally satisfied by a domestic legal regime that provides, for example, for no more than the name of the authority competent to order deprivation of liberty in a transit zone, the form of the order, its possible grounds and limits, the maximum duration of the confinement and, as required by Article 5 § 4, the applicable avenue of judicial appeal. 163. Furthermore, Article 5 § 1 (f) does not prevent States from enacting domestic law provisions that formulate the grounds on which such confinement can be ordered with due regard to the practical realities of massive influx of asylum-seekers. In particular, subparagraph 1(f) does not prohibit deprivation of liberty in a transit zone for a limited period on grounds that such confinement is generally necessary to ensure the asylum seekers’ presence pending the examination of their asylum claims or, moreover, on grounds that there is a need to examine the admissibility of asylum applications speedily and that, to that end, a structure and adapted procedures have been put in place at the transit zone (see, for a similar approach, Saadi, cited above, § 80). (ii) Application of these principles 164. The Court notes the argument of the applicants and the UNHCR pointing to the lack of any legal basis for the applicants’ confinement in the transit zone of Sheremetyevo Airport (see paragraph 110 above). It also notes that the Government essentially did not dispute that allegation (see paragraphs 113-118 above). Having examined the applicable domestic law (see paragraphs 97-100 above), the Court finds no trace of any provision of Russian law capable of serving as grounds for justifying the applicants’ deprivation of liberty. Accordingly, it concludes that in the present case there was no strictly defined statutory basis for the applicants’ detention. 165. This in itself would be sufficient to find a violation of Article 5 § 1 of the Convention. However, the Court would also point at the following additional factors, which further worsened the applicants’ respective situations in the present case. As transpires from the facts of the case, the applicants’ access to the asylum procedure was considerably impeded as a result of their detention, as there was no information available on asylum procedures in Russia in the transit zone and their access to legal assistance was severely restricted (see paragraphs 42-44 above). 166. The Court next observes that the applicants experienced serious delays when attempting to submit and register their asylum applications (see paragraphs 46-49, 57-59, 66-67 and 83-85 above) and, despite their written requests, were not issued and served with examination certificates as required by the domestic law (see paragraphs 49, 51, 59, 60, 68, 71 and 86 above). 167. The Court notes that some of the decisions taken by the Russian administrative and judicial bodies were communicated to them with delays (see paragraphs 50, 69, 75 and 88 above). 168. Also, the applicants were confined in a place which was clearly inappropriate for a long-term stay (see paragraphs 191-195 below). 169. Lastly, the duration of each applicant’s stay in the airport transit zone was considerable and clearly excessive in view of the nature and purpose of the procedure concerned, ranging from five months to over a year and nine months (compare Kanagaratnam v. Belgium, no. 15297/09, §§ 94-95, 13 December 2011; see also Longa Yonkeu v. Latvia, no. 57229/09, § 131, 15 November 2011, where the combined length of three periods of detention lacking a legal basis amounted to three months and seven days; and Suso Musa, cited above, § 102, where the period in question was “more than six months”.) 170. The Court finds that the applicants’ detention for the purposes of the first limb of subparagraph 5 § 1 (f) fell short of the Convention standards. 171. There has accordingly been a violation of Article 5 § 1 of the Convention in respect of each applicant. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 172. The applicants complained that the poor material conditions of their stay in the transit zone of Sheremetyevo Airport had been incompatible with the guarantees of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Chamber judgment 173. The Chamber declared the complaint about the poor material conditions of the applicants’ detention in the airport transit zone admissible. 174. Referring to the Court’s well-established standards regarding conditions of detention in general, as well as those relevant in the context of confinement of aliens, and noting the rules on distribution of the burden of proof in conditions of detention cases, the Chamber acknowledged that the applicants had provided a credible and reasonably detailed description of the allegedly degrading conditions of detention, constituting a prima facie case of ill-treatment. Given that the Government had not submitted any description of the conditions of the applicants’ confinement in the airport transit zone, the Chamber found it established that the applicants had not had individual beds and had not enjoyed access to shower and cooking facilities and considered it unacceptable that anyone could be detained in conditions in which there was a complete failure to take care of his or her essential needs. The Chamber concluded that the fact that the applicants had been detained for many months in the transit zone of Sheremetyevo Airport in unacceptable conditions amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. The parties’ submissionsThe applicants The applicants The applicants 175. Reiterating that their confinement in the transit zone had amounted to deprivation of liberty, the applicants emphasised that, according to the Court’s case-law, the State must ensure that a person is detained in conditions compatible with respect for human dignity and that confinement of aliens must be accompanied by suitable standards, and maintained that they had stayed in the transit zone for lengthy periods of time in unacceptable conditions against their will, being unable to return to their home countries. They concluded that there had been a violation of Article 3 of the Convention. The Government 176. The Government stressed that a person under a State’s jurisdiction was not necessarily “at the hands of the authorities”. In the absence of a violation of Article 5 § 1, the Russian Government had not been under any obligation under Article 3 vis-à-vis the applicants, who had put themselves in difficult conditions through their own actions. 177. The Government further stated that there was no right to asylum and no corresponding obligations were imposed on a State; however, a State could afford “appropriate protection” to persons fleeing from persecution. The applicants in the present case had acted in bad faith when applying for asylum as they should have known that they were not eligible for such protection and should have foreseen that they would not be allowed entry into Russia. The Government concluded that there had been no violation of Article 3 of the Convention. Third-party intervener 178. The UNHCR described the material conditions of the stay of asylum ‑ seekers in Russian airport transit zones as follows. 179. The conditions of stay in airport transit zones were not regulated by Russian law. Nor had they been improved over the previous several years. Asylum-seekers stranded in transit zones were deprived of access to fresh air, privacy, food, and access to medical and social care. They had no choice but to stay in the open area of the transit zone in question without access to any hygienic facilities and to sleep on the floor. The UNHCR distributed basic food items and bed linen, clothing, and hygienic products on a weekly basis. 180. Russian law did not place responsibility on any State authority for ensuring minimum basic care for asylum-seekers in transit zones. The period during which an asylum-seeker had to undergo such a dire lack of basic facilities could be prolonged as on average the complete asylum procedure, including appeals, could last between one and two years. The Court’s assessmentGeneral principles General principles General principles 181. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that level is relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. In the context of confinement and living conditions of asylum seekers, the Court has summarised the relevant general principles in the case of Khlaifia and Others (cited above, §§ 158-69). 182. Article 3 of the Convention requires the State to ensure that detention conditions are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the detainees to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see, for example, Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI). 183. In so far as the confinement of aliens and asylum-seekers is concerned, the Court reiterates the standard under Article 3 of the Convention, as recapitulated in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, §§ 216-18, ECHR 2011 (see also Dougoz v. Greece, no. 40907/98, § 44, ECHR 2001 ‑ II; Kaja v. Greece, no. 32927/03, §§ 45-46, 27 July 2006; S.D. v. Greece, no. 53541/07, §§ 45-48, 11 June 2009; Mahamed Jama v. Malta, no. 10290/13, §§ 86-89, 26 November 2015; Khlaifia and Others, cited above, §§ 163-67; Boudraa v. Turkey, no. 1009/16, §§ 28-29, 28 November 2017; and S.F. and Others v. Bulgaria, no. 8138/16, §§ 78-83, 7 December 2017), according to which it must be accompanied by suitable safeguards for the persons concerned and is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations and without depriving asylum-seekers of the protection afforded by the 1951 Geneva Convention relating to the Status of Refugees and the European Convention on Human Rights (see also Rahimi v. Greece, no. 8687/08, § 62, 5 April 2011, Khlaifia and Others, cited above, § 162, in the context of positive obligations vis ‑ à ‑ vis foreign nationals pending issuance of a transit visa; and Shioshvili and Others v. Russia, no. 19356/07, §§ 83-86, 20 December 2016). 184. The States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum ‑ seekers of the protection afforded by these conventions (see Amuur, cited above, § 43). 185. Where the Court is called upon to examine the conformity of the manner and method of the execution of the measure with the provisions of the Convention, it must look at the particular situations of the persons concerned (see Riad and Idiab, cited above, § 100). The States must have particular regard to Article 3 of the Convention, which enshrines one of the most fundamental values of democratic societies and prohibits in absolute terms torture and inhuman or degrading treatment or punishment irrespective of the circumstances and of the victim’s conduct (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV). 186. The Court further reiterates that, quite apart from the necessity of having sufficient personal space, other aspects of physical conditions of detention are relevant for the assessment of compliance with Article 3 in such cases. Relevant elements include access to outdoor exercise, natural light or air, availability of ventilation, and compliance with basic sanitary and hygiene requirements (see, for example, S.D. v. Greece, cited above, §§ 49-54; Tabesh v. Greece, no. 8256/07, §§ 38-44, 26 November 2009; A.A. v. Greece, no. 12186/08, §§ 57-65, 22 July 2010; E.A. v. Greece, no. 74308/10, §§ 50-51, 30 July 2015; Abdi Mahamud v. Malta, no. 56796/13, §§ 89-90, 3 May 2016; Alimov v. Turkey, no. 14344/13, §§ 84-85, 6 September 2016; Abdullahi Elmi and Aweys Abubakar v. Malta, nos. 25794/13 and 28151/13, §§ 113-14, 22 November 2016; and Khlaifia and Others, cited above, § 167). Application of those principles 187. The Court notes first of all that many of the Contracting Parties to the Convention are experiencing considerable difficulties in coping with the influx of migrants and asylum-seekers. The Court does not underestimate the burden and pressure this situation places on the States concerned and it is particularly aware of the difficulties involved in the reception of migrants and asylum ‑ seekers on their arrival at major international airports. 188. However, the Court would reiterate in this connection that the prohibition of inhuman or degrading treatment is a fundamental value in democratic societies. It is also a value of civilisation closely bound up with respect for human dignity, part of the very essence of the Convention. The prohibition in question is absolute, for no derogation from it is permissible even in the event of a public emergency threatening the life of the nation or in the most difficult circumstances, such as the fight against terrorism and organised crime, irrespective of the conduct of the person concerned (see Khlaifia and Others, cited above, § 158 with further references). The difficulties mentioned in the above paragraph cannot therefore absolve a State of its obligations under Article 3. 189. Having regard to its earlier finding that the applicants’ stay in the airport transit zone amounted to a deprivation of liberty (see paragraph 156 above), the Court’s task in the present case is to review the applicants’ detention against the yardstick of the Convention provisions and to examine, in particular, whether the applicants were detained in conditions compatible with respect for human dignity (see Riad and Idiab, cited above, § 100, and Khlaifia and Others, cited above, § 162). 190. It is important to note that the applicants gave a credible and reasonably detailed description of their living conditions in the airport transit zone, which are supported by similar findings by the UNHCR (see paragraphs 122, 179 and 180 above), and are not explicitly disputed by the Government. This being so, referring to its well-established standard of proof in conditions-of-detention cases (see Muršić v. Croatia [GC], no. 7334/13, § 128, 20 October 2016; see also Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 121-23, 10 January 2012), the Court accepts that description as accurate. 191. On the basis of the available material, the Court can clearly see that the conditions of the applicants’ stay in the transit zone of Sheremetyevo Airport were unsuitable for an enforced long-term stay. In its view, a situation where a person not only has to sleep for months at a stretch on the floor in a constantly lit, crowded and noisy airport transit zone without unimpeded access to shower or cooking facilities and without outdoor exercise, but also has no access to medical or social assistance (see paragraphs 41 and 42 above) falls short of the minimum standards of respect for human dignity. 192. This situation was aggravated in the circumstances of the case by the fact that the applicants were left to their own devices in the transit zone, in disregard of the Russian domestic rules granting every asylum-seeker the right to be issued with an examination certificate and to be placed in temporary accommodation facilities pending examination of the asylum application (see paragraphs 99 and 100 above; compare Riad and Idiab, cited above, § 101). 193. The Court would also note that three of the applicants were eventually recognised by the UNHCR as being in need of international protection (see paragraphs 54, 77 and 94 above), which suggests that their distress was accentuated on account of the events that they had been through during their migration (see M.S.S. v. Belgium and Greece, cited above, § 232). 194. Lastly, the Court notes the extremely long duration of the detention for each of the applicants. The applicants’ detention lasted for many months in a row: seven months and nineteen days in the case of Mr Z.A.; five months and one day in the case of Mr M.B.; one year, nine months and at least twenty-eight days in the case of Mr A. M.; and seven months and twenty-two days in the case of Mr Yasien (see paragraph 148 above). 195. The Court considers that, taken together, the appalling material conditions which the applicants had to endure for such long periods of time and the complete failure of the authorities to take care of the applicants constitute degrading treatment contrary to Article 3 of the Convention. 196. Nothing in the Government’s submissions warrants concluding otherwise. The Court has also ruled that the applicants were under the respondent State’s control and in their custody throughout the relevant period of time (see paragraph 151 above). 197. The Court concludes that there has therefore been a violation of Article 3 of the Convention in respect of each applicant. APPLICATION OF ARTICLE 41 OF THE CONVENTION 198. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 199. Before the Chamber, the applicants claimed the following amounts in respect of non-pecuniary damage: 20,000 euros (EUR) each for Mr Z.A. and Mr Yasien, EUR 15,000 for Mr M.B. and EUR 35,000 for Mr A.M. 200. The Chamber found that the applicants had experienced distress and frustration on account of the breaches of Article 5 § 1 and Article 3 of the Convention, and that those breaches could not be made good solely by its findings. Making its assessment on an equitable basis, it awarded Mr Z.A. and Mr Yasien EUR 20,000 each, EUR 15,000 to Mr M.B. and EUR 26,000 to Mr A.M. in respect of non-pecuniary damage. 201. In the Grand Chamber proceedings the applicants claimed identical amounts to those claimed before the Chamber. 202. The Court considers that the applicants must have suffered distress and frustration as a result of the violations of Article 5 § 1 and Article 3 of the Convention in their case. It takes account of the circumstances of the present case, the claims made by each applicant and its practice adopted in previous comparable cases (see, for example, Riad and Idiab, cited above, § 117; Shamsa, cited above, § 65; and Rashed, cited above, § 81). Deciding on an equitable basis, the Court awards them the same amounts in respect of non-pecuniary damage as the Chamber did, that is, EUR 20,000 each to Mr Z.A. and Mr Yasien, EUR 15,000 to Mr M.B., and EUR 26,000 to Mr A.M. Costs and expenses 203. Before the Chamber, the applicants submitted the following claims for costs and expenses incurred domestically: EUR 1,650 for Mr Z.A., EUR 1,250 for Mr M.B., EUR 3,500 for Mr A.M., and EUR 2,000 for Mr Yasien. As regards the costs and expenses incurred before the Court, the applicants claimed EUR 3,500 each. 204. The Chamber awarded each applicant the sum of EUR 3,500, covering costs and expenses under all heads. 205. In the Grand Chamber proceedings the applicants claimed, jointly, EUR 4,900 for costs and expenses incurred domestically, EUR 14,000 for the proceedings before the Chamber, and EUR 7,800 for the proceedings before the Grand Chamber, that is, EUR 26,700 in total. The applicants’ representatives requested that the sums awarded be paid directly into their respective bank accounts. 206. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers excessive the total sum claimed for the costs and expenses incurred in the domestic proceedings and the proceedings before it. It decides to award the applicants EUR 19,000 jointly under that head. That sum is to be paid directly into the bank accounts of the applicants’ representatives (see Khlaifia and Others, cited above, § 288). Default interest 207. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Grand Chamber found in particular that Article 5 (right to liberty and security) of the Convention was applicable to the applicants’ case as their presence in the transit zone had not been voluntary; they had been left to their own devices for the entire period of their stay, which had lasted between five months and almost two years depending on the applicant; there had been no realistic prospect of them being able to leave the zone; and the authorities had not adhered to the domestic legislation on the reception of asylum-seekers. Further, given the absence of a legal basis for their being confined to the transit zone, a situation made worse by them being impeded in accessing the asylum system, the Court concluded that there had been a violation of the applicants’ rights protected by Article 5 § 1 of the Convention. |
274 | Information about the date on which the measures ceased to apply | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Introduction 25. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 ("the 1974 Act"). Between 1972 and 1983, over two thousand deaths were attributable to terrorism in Northern Ireland as compared with about one hundred in Great Britain. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism continued to thrive. 26. The 1974 Act came into force on 29 November 1974. The Act proscribed the IRA and made it an offence to display support in public for that organisation in Great Britain. The IRA was already a proscribed organisation in Northern Ireland. The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism (see paragraphs 30-33 below). 27. The 1974 Act was subject to renewal every six months by Parliament so that, inter alia, the need for the continued use of the special powers could be monitored. The Act was thus renewed until March 1976 when it was re-enacted with certain amendments. Under section 17 of the 1976 Act, the special powers were subject to parliamentary renewal every twelve months. The 1976 Act was in turn renewed annually until 1984, when it was re-enacted with certain amendments. The 1984 Act, which came into force in March 1984, proscribed the INLA as well as the IRA. It has been renewed every year but will expire in March 1989, when the Government intend to introduce permanent legislation. 28. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. Annual reports on the 1984 Act have been presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and Viscount Colville (for 1986 and 1987), who also completed in 1987 a wider-scale review of the operation of the 1984 Act. 29. These reviews were commissioned by the Government and presented to Parliament to assist consideration of the continued need for the legislation. The authors of these reviews concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism, the continued use of the special powers of arrest and detention was indispensable. The suggestion that decisions extending detention should be taken by the courts was rejected, notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers. For various reasons, the decisions fell properly within the sphere of the executive. B. Power to arrest without warrant under the 1984 and other Acts 30. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows: "12 (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be ... (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies; ... (3) The acts of terrorism to which this Part of this Act applies are (a) acts of terrorism connected with the affairs of Northern Ireland; ... (4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him. (5) Any such further period or periods shall not exceed five days in all. (6) The following provisions (requirement to bring accused person before the court after his arrest) shall not apply to a person detained in right of the arrest ... (d) Article 131 of the Magistrates ’ Courts ( Northern Ireland ) Order 1981; ... (8) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section." 31. According to the definition given in section 14 (1) of the 1984 Act, terrorism "means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear". An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be "in wide terms" by the House of Lords, which rejected an interpretation of the word "terrorist" that would have been "in narrower terms than popular usage of the word ‘ terrorist ’ might connote to a police officer or a layman" (McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per Lord Roskill ). 32. Article 131 of the Magistrates ’ Courts (Northern Ireland) Order 1981, declared inapplicable by section 12(6)(d) of the 1984 Act (see paragraph 30 above), provides that where a person arrested without warrant is not within twenty-four hours released from custody, he must be brought before a Magistrates ’ Court as soon as practicable thereafter but not later than forty-eight hours after his arrest. 33. The Northern Ireland (Emergency Provisions) Act 1978 also conferred special powers of arrest without warrant. Section 11 provided that a constable could arrest without warrant any person whom he suspected of being a terrorist. Such a person could be detained for up to seventy-two hours without being brought before a court. The 1978 Act has been amended by the Northern Ireland (Emergency Provisions) Act 1987, which came into force on 15 June 1987. The powers of arrest under the 1978 Act have been replaced by a power to enter and search premises for the purpose of arresting a suspected terrorist under section 12 of the 1984 Act. C. Exercise of the power to make an arrest under section 12 (1)(b) of the 1984 Act 34. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why. In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at 131, in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b). The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. The High Court held that the officer had communicated the true ground of arrest and had done what was reasonable in the circumstances to convey to the applicant the nature of his suspicion, namely that the applicant was involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be impugned in this respect. 35. The arresting officer ’ s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion (per Higgins J. in Van Hout v. Chief Constable of the RUC and the Northern Ireland Office, decision of Northern Ireland High Court, 28 June 1984 ). D. Purpose of arrest and detention under section 12 of the 1984 Act 36. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal Reports 197 at 205 and Holgate -Mohammed v. Duke [1984] 1 All England Law Reports 1054 at 1059). On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch (loc. cit. at 131) that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12 (1)(b). He added (ibid.): "... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated." E. Extension of period of detention 37. In Northern Ireland, applications for extended detention beyond the initial forty-eight-hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister. There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews appended to the Government ’ s memorial. According to statistics quoted by the Standing Advisory Commission on Human Rights in its written submissions (see paragraph 6 above), just over 2% of police requests for extended detention in Northern Ireland between the entry into force of the 1984 Act in March 1984 and June 1987 were refused by the Secretary of State. F. Remedies 38. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment. 1. Habeas corpus 39. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days (section 12 (4) and (5) - see paragraph 30 above). Paragraph 5 (2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act "shall be deemed to be in legal custody when he is so detained". However, the remedy of habeas corpus is not precluded by paragraph 5 (2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest (per Higgins J. in the Van Hout case, loc. cit., at 18). 40. Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful. The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion grounding the arrest (ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose (R v. Governor of Brixton Prison, ex parte Sarno [1916] 2 King ’ s Bench Reports 742 and R v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All England Law Reports 641). The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has firstly established a prima facie case ( Khawaja v. Secretary of State [1983] 1 All England Law Reports 765). 2. False imprisonment 41. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause ( Dallison v. Caffrey [1965] 1 Queen ’ s Bench Reports 348 and Van Hout, loc. cit., at 15). In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion (see Holgate -Mohammed v. Duke, loc. cit.). PROCEEDINGS BEFORE THE COMMISSION 42. The applicants applied to the Commission on 18 October 1984, 22 October 1984, 22 November 1984 and 8 February 1985 respectively (applications nos. 11209/84, 11234/84, 11266/84 and 11386/85). They claimed that their arrest and detention were not justified under Article 5 para. 1 (art. 5-1) of the Convention and that there had also been breaches of paragraphs 2, 3, 4 and 5 of that Article (art. 5-2, art. 5-3, art. 5-4, art. 5-5). They also alleged that, contrary to Article 13 (art. 13), they had no effective remedy in respect of their other complaints. The complaint under Article 5 para. 2 (art. 5-2) was subsequently withdrawn. 43. On 10 July 1986, the Commission ordered the joinder of the applications in pursuance of Rule 29 of its Rules of Procedure and, on the following day, it declared the applications admissible. In its report of 14 May 1987 (drawn up in accordance with Article 31) (art. 31), the Commission concluded that there had been a breach of paragraphs 3 and 5 of Article 5 (art. 5-3, art. 5-5) in respect of Mr Brogan and Mr Coyle (by ten votes to two for paragraph 3 (art. 5-3), and nine votes to three for paragraph 5 (art. 5-5)), but not in respect of Mr McFadden and Mr Tracey (by eight votes to four for both paragraphs (art. 5-3, art. 5-5)). It also concluded that there had been no breach of paragraphs 1 and 4 of Article 5 (art. 5-1, art. 5-4) (unanimously for paragraph 1 (art. 5-1), and by ten votes to two for paragraph 4 (art. 5-4)) and finally that no separate issue arose under Article 13 (art. 13) (unanimously). The full text of the Commission ’ s opinion and of the dissenting opinions contained in the report is reproduced as an annex to this judgment. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 44. At the public hearing on 25 May 1988, the Government maintained in substance the concluding submissions set out in their memorial, whereby they requested the Court to decide "(1) that the facts disclose no breach of paragraphs 1, 3, 4 or 5 of Article 5 (art. 5-1, art. 5-3, art. 5-4, art. 5-5) of the Convention; (2) that the facts disclose no breach of Article 13 (art. 13) of the Convention, alternatively that no separate issue arises under Article 13 (art. 13) of the Convention". In addition, the Government requested the Court not to entertain the complaint raised under Article 5 para. 2 (art. 5-2). AS TO THE LAW I. SCOPE OF THE CASE BEFORE THE COURT 45. In their original petitions to the Commission, the applicants alleged breach of paragraph 2 of Article 5 (art. 5-2), which provides: "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him." However, they subsequently withdrew the claim, and the Commission noted in its admissibility decision that the applicants were no longer complaining under paragraph 2 (art. 5-2). In a letter filed in the registry on 17 May 1988, the applicants sought the leave of the Court to reinstate the complaint. In their oral pleadings both the respondent Government and the Commission objected to the applicants ’ request. 46. The scope of the Court ’ s jurisdiction is determined by the Commission ’ s decision declaring the originating application admissible (see, inter alia, the Weeks judgment of 2 March 1987, Series A no. 114, p. 21, para. 37). The Court considers that regard must be had in the instant case to the express withdrawal of the claim under paragraph 2 (art. 5-2). As a result, the Commission discontinued its examination of the admissibility of this complaint. To permit the applicants to resuscitate this complaint before the Court would be to circumvent the machinery established for the examination of petitions under the Convention. 47. Consequently, the allegation that there has been a breach of Article 5 para. 2 (art. 5-2) cannot be entertained. II. GENERAL APPROACH 48. The Government have adverted extensively to the existence of particularly difficult circumstances in Northern Ireland, notably the threat posed by organised terrorism. The Court, having taken notice of the growth of terrorism in modern society, has already recognised the need, inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights (see the Klass and Others judgment of 6 September 1978, Series A no. 28, pp. 23 and 27-28, paras. 48-49 and 59). The Government informed the Secretary General of the Council of Europe on 22 August 1984 that they were withdrawing a notice of derogation under Article 15 (art. 15) which had relied on an emergency situation in Northern Ireland (see Yearbook of the Convention, vol. 14, p. 32 [1971], vol. 16, pp. 26-28 [1973], vol. 18, p. 18 [1975], and vol. 21, p. 22 [1978], for communications giving notice of derogation, and Information Bulletin on Legal Activities within the Council of Europe and in Member States, vol. 21, p. 2 [July, 1985], for the withdrawal). The Government indicated accordingly that in their opinion "the provisions of the Convention are being fully executed". In any event, as they pointed out, the derogation did not apply to the area of law in issue in the present case. Consequently, there is no call in the present proceedings to consider whether any derogation from the United Kingdom ’ s obligations under the Convention might be permissible under Article 15 (art. 15) by reason of a terrorist campaign in Northern Ireland. Examination of the case must proceed on the basis that the Articles of the Convention in respect of which complaints have been made are fully applicable. This does not, however, preclude proper account being taken of the background circumstances of the case. In the context of Article 5 (art. 5), it is for the Court to determine the significance to be attached to those circumstances and to ascertain whether, in the instant case, the balance struck complied with the applicable provisions of that Article in the light of their particular wording and its overall object and purpose. III. ALLEGED BREACH OF ARTICLE 5 PARA. 1 (art. 5-1) 49. The applicants alleged breach of Article 5 para. 1 (art. 5-1) of the Convention, which, in so far as relevant, provides: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...; ..." There was no dispute that the applicants ’ arrest and detention were "lawful" under Northern Ireland law and, in particular, "in accordance with a procedure prescribed by law". The applicants argued that the deprivation of liberty they suffered by virtue of section 12 of the 1984 Act failed to comply with Article 5 para. 1 (c) (art. 5-1-c), on the ground that they were not arrested on suspicion of an "offence", nor was the purpose of their arrest to bring them before the competent legal authority. 50. Under the first head of argument, the applicants maintained that their arrest and detention were grounded on suspicion, not of having committed a specific offence, but rather of involvement in unspecified acts of terrorism, something which did not constitute a breach of the criminal law in Northern Ireland and could not be regarded as an "offence" under Article 5 para. 1 (c) (art. 5-1-c). The Government have not disputed that the 1984 Act did not require an arrest to be based on suspicion of a specific offence but argued that the definition of terrorism in the Act was compatible with the concept of an offence and satisfied the requirements of paragraph 1 (c) (art. 5-1-c) in this respect, as the Court ’ s case-law confirmed. In this connection, the Government pointed out that the applicants were not in fact suspected of involvement in terrorism in general, but of membership of a proscribed organisation and involvement in specific acts of terrorism, each of which constituted an offence under the law of Northern Ireland and each of which was expressly put to the applicants during the course of their interviews following their arrests. 51. Section 14 of the 1984 Act defines terrorism as "the use of violence for political ends", which includes "the use of violence for the purpose of putting the public or any section of the public in fear" (see paragraph 31 above). The same definition of acts of terrorism - as contained in the Detention of Terrorists (Northern Ireland) Order 1972 and the Northern Ireland (Emergency Provisions) Act 1973 - has already been found by the Court to be "well in keeping with the idea of an offence" (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 74-75, para. 196). In addition, all of the applicants were questioned within a few hours of their arrest about their suspected involvement in specific offences and their suspected membership of proscribed organisations (see paragraphs 13, 16, 19 and 22 above). Accordingly, the arrest and subsequent detention of the applicants were based on a reasonable suspicion of commission of an offence within the meaning of Article 5 para. 1 (c) (art. 5-1-c). 52. Article 5 para. 1 (c) (art. 5-1-c) also requires that the purpose of the arrest or detention should be to bring the person concerned before the competent legal authority. The Government and the Commission have argued that such an intention was present and that if sufficient and usable evidence had been obtained during the police investigation that followed the applicants ’ arrest, they would undoubtedly have been charged and brought to trial. The applicants contested these arguments and referred to the fact that they were neither charged nor brought before a court during their detention. No charge had necessarily to follow an arrest under section 12 of the 1984 Act and the requirement under the ordinary law to bring the person before a court had been made inapplicable to detention under this Act (see paragraphs 30 and 32 above). In the applicants ’ contention, this was therefore a power of administrative detention exercised for the purpose of gathering information, as the use in practice of the special powers corroborated. 53. The Court is not required to examine the impugned legislation in abstracto, but must confine itself to the circumstances of the case before it. The fact that the applicants were neither charged nor brought before a court does not necessarily mean that the purpose of their detention was not in accordance with Article 5 para. 1 (c) (art. 5-1-c). As the Government and the Commission have stated, the existence of such a purpose must be considered independently of its achievement and sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c) does not presuppose that the police should have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicants were in custody. Such evidence may have been unobtainable or, in view of the nature of the suspected offences, impossible to produce in court without endangering the lives of others. There is no reason to believe that the police investigation in this case was not in good faith or that the detention of the applicants was not intended to further that investigation by way of confirming or dispelling the concrete suspicions which, as the Court has found, grounded their arrest (see paragraph 51 above). Had it been possible, the police would, it can be assumed, have laid charges and the applicants would have been brought before the competent legal authority. Their arrest and detention must therefore be taken to have been effected for the purpose specified in paragraph 1 (c) (art. 5-1-c). 54. In conclusion, there has been no violation of Article 5 para. 1 (art. 5-1). IV. ALLEGED BREACH OF ARTICLE 5 PARA. 3 (art. 5-3) 55. Under the 1984 Act, a person arrested under section 12 on reasonable suspicion of involvement in acts of terrorism may be detained by police for an initial period of forty-eight hours, and, on the authorisation of the Secretary of State for Northern Ireland, for a further period or periods of up to five days (see paragraphs 30-37 above). The applicants claimed, as a consequence of their arrest and detention under this legislation, to have been the victims of a violation of Article 5 para. 3 (art. 5-3), which provides: "Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial." The applicants noted that a person arrested under the ordinary law of Northern Ireland must be brought before a Magistrates ’ Court within forty-eight hours (see paragraph 32 above); and that under the ordinary law in England and Wales (Police and Criminal Evidence Act 1984) the maximum period of detention permitted without charge is four days, judicial approval being required at the thirty-six hour stage. In their submission, there was no plausible reason why a seven-day detention period was necessary, marking as it did such a radical departure from ordinary law and even from the three-day period permitted under the special powers of detention embodied in the Northern Ireland (Emergency Provisions) Act 1978 (see paragraph 33 above). Nor was there any justification for not entrusting such decisions to the judiciary of Northern Ireland. 56. The Government have argued that in view of the nature and extent of the terrorist threat and the resulting problems in obtaining evidence sufficient to bring charges, the maximum statutory period of detention of seven days was an indispensable part of the effort to combat that threat, as successive parliamentary debates and reviews of the legislation had confirmed (see paragraphs 26-29 above). In particular, they drew attention to the difficulty faced by the security forces in obtaining evidence which is both admissible and usable in consequence of training in anti-interrogation techniques adopted by those involved in terrorism. Time was also needed to undertake necessary scientific examinations, to correlate information from other detainees and to liaise with other security forces. The Government claimed that the need for a power of extension of the period of detention was borne out by statistics. For instance, in 1987 extensions were granted in Northern Ireland in respect of 365 persons. Some 83 were detained in excess of five days and of this number 39 were charged with serious terrorist offences during the extended period. As regards the suggestion that extensions of detention beyond the initial forty-eight-hour period should be controlled or even authorised by a judge, the Government pointed out the difficulty, in view of the acute sensitivity of some of the information on which the suspicion was based, of producing it in court. Not only would the court have to sit in camera but neither the detained person nor his legal advisers could be present or told any of the details. This would require a fundamental and undesirable change in the law and procedure of the United Kingdom under which an individual who is deprived of his liberty is entitled to be represented by his legal advisers at any proceedings before a court relating to his detention. If entrusted with the power to grant extensions of detention, the judges would be seen to be exercising an executive rather than a judicial function. It would add nothing to the safeguards against abuse which the present arrangements are designed to achieve and could lead to unanswerable criticism of the judiciary. In all the circumstances, the Secretary of State was better placed to take such decisions and to ensure a consistent approach. Moreover, the merits of each request to extend detention were personally scrutinised by the Secretary of State or, if he was unavailable, by another Minister (see paragraph 37 above). 57. The Commission, in its report, cited its established case-law to the effect that a period of four days in cases concerning ordinary criminal offences and of five days in exceptional cases could be considered compatible with the requirement of promptness in Article 5 para. 3 (art. 5-3) (see respectively the admissibility decisions in application no. 2894/66, X v. the Netherlands, Yearbook of the Convention, vol. 9, p. 568 (1966), and in application no. 4960/71, X v. Belgium, Collection of Decisions, vol. 42, pp. 54-55 (1973)). In the Commission ’ s opinion, given the context in which the applicants were arrested and the special problems associated with the investigation of terrorist offences, a somewhat longer period of detention than in normal cases was justified. The Commission concluded that the periods of four days and six hours (Mr McFadden) and four days and eleven hours (Mr Tracey) did satisfy the requirement of promptness, whereas the periods of five days and eleven hours (Mr Brogan) and six days and sixteen and a half hours (Mr Coyle) did not. 58. The fact that a detained person is not charged or brought before a court does not in itself amount to a violation of the first part of Article 5 para. 3 (art. 5-3). No violation of Article 5 para. 3 (art. 5-3) can arise if the arrested person is released "promptly" before any judicial control of his detention would have been feasible (see the de Jong, Baljet and van den Brink judgment of 22 May 1984, Series A no. 77, p. 25, para. 52). If the arrested person is not released promptly, he is entitled to a prompt appearance before a judge or judicial officer. The assessment of "promptness" has to be made in the light of the object and purpose of Article 5 (art. 5) (see paragraph 48 above). The Court has regard to the importance of this Article (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty (see the Bozano judgment of 18 December 1986, Series A no. 111, p. 23, para. 54). Judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness. Judicial control is implied by the rule of law, "one of the fundamental principles of a democratic society ..., which is expressly referred to in the Preamble to the Convention" (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, pp. 25-26, para. 55) and "from which the whole Convention draws its inspiration" (see, mutatis mutandis, the Engel and Others judgment of 8 June 1976, Series A no. 22, p. 28, para. 69). 59. The obligation expressed in English by the word "promptly" and in French by the word" aussitôt" is clearly distinguishable from the less strict requirement in the second part of paragraph 3 (art. 5-3) ("reasonable time"/" délai raisonnable ") and even from that in paragraph 4 of Article 5 (art. 5-4) ("speedily"/" à bref délai "). The term "promptly" also occurs in the English text of paragraph 2 (art. 5-2), where the French text uses the words" dans le plus court délai ". As indicated in the Ireland v. the United Kingdom judgment ( 18 January 1978, Series A no. 25, p. 76, para. 199), "promptly" in paragraph 3 (art. 5-3) may be understood as having a broader significance than" aussitôt ", which literally means immediately. Thus confronted with versions of a law-making treaty which are equally authentic but not exactly the same, the Court must interpret them in a way that reconciles them as far as possible and is most appropriate in order to realise the aim and achieve the object of the treaty (see, inter alia, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 30, para. 48, and Article 33 para. 4 of the Vienna Convention of 23 May 1969 on the Law of Treaties). The use in the French text of the word" aussitôt ", with its constraining connotation of immediacy, confirms that the degree of flexibility attaching to the notion of "promptness" is limited, even if the attendant circumstances can never be ignored for the purposes of the assessment under paragraph 3 (art. 5-3). Whereas promptness is to be assessed in each case according to its special features (see the above-mentioned de Jong, Baljet and van den Brink judgment, Series A no. 77, p. 25, para. 52), the significance to be attached to those features can never be taken to the point of impairing the very essence of the right guaranteed by Article 5 para. 3 (art. 5-3), that is to the point of effectively negativing the State ’ s obligation to ensure a prompt release or a prompt appearance before a judicial authority. 60. The instant case is exclusively concerned with the arrest and detention, by virtue of powers granted under special legislation, of persons suspected of involvement in terrorism in Northern Ireland. The requirements under the ordinary law in Northern Ireland as to bringing an accused before a court were expressly made inapplicable to such arrest and detention by section 12(6) of the 1984 Act (see paragraphs 30 and 32 above). There is no call to determine in the present judgment whether in an ordinary criminal case any given period, such as four days, in police or administrative custody would as a general rule be capable of being compatible with the first part of Article 5 para. 3 (art. 5-3). None of the applicants was in fact brought before a judge or judicial officer during his time in custody. The issue to be decided is therefore whether, having regard to the special features relied on by the Government, each applicant ’ s release can be considered as "prompt" for the purposes of Article 5 para. 3 (art. 5-3). 61. The investigation of terrorist offences undoubtedly presents the authorities with special problems, partial reference to which has already been made under Article 5 para. 1 (art. 5-1) (see paragraph 53 above). The Court takes full judicial notice of the factors adverted to by the Government in this connection. It is also true that in Northern Ireland the referral of police requests for extended detention to the Secretary of State and the individual scrutiny of each police request by a Minister do provide a form of executive control (see paragraph 37 above). In addition, the need for the continuation of the special powers has been constantly monitored by Parliament and their operation regularly reviewed by independent personalities (see paragraphs 26-29 above). The Court accepts that, subject to the existence of adequate safeguards, the context of terrorism in Northern Ireland has the effect of prolonging the period during which the authorities may, without violating Article 5 para. 3 (art. 5-3), keep a person suspected of serious terrorist offences in custody before bringing him before a judge or other judicial officer. The difficulties, alluded to by the Government, of judicial control over decisions to arrest and detain suspected terrorists may affect the manner of implementation of Article 5 para. 3 (art. 5-3), for example in calling for appropriate procedural precautions in view of the nature of the suspected offences. However, they cannot justify, under Article 5 para. 3 (art. 5-3), dispensing altogether with "prompt" judicial control. 62. As indicated above (paragraph 59), the scope for flexibility in interpreting and applying the notion of "promptness" is very limited. In the Court ’ s view, even the shortest of the four periods of detention, namely the four days and six hours spent in police custody by Mr McFadden (see paragraph 18 above), falls outside the strict constraints as to time permitted by the first part of Article 5 para. 3 (art. 5-3). To attach such importance to the special features of this case as to justify so lengthy a period of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word "promptly". An interpretation to this effect would import into Article 5 para. 3 (art. 5-3) a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the right protected by this provision. The Court thus has to conclude that none of the applicants was either brought "promptly" before a judicial authority or released "promptly" following his arrest. The undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism is not on its own sufficient to ensure compliance with the specific requirements of Article 5 para. 3 (art. 5-3). There has thus been a breach of Article 5 para. 3 (art. 5-3) in respect of all four applicants. V. ALLEGED BREACH OF ARTICLE 5 PARA. 4 (art. 5-4) 63. The applicants argued that as Article 5 (art. 5) had not been incorporated into United Kingdom law, an effective review of the lawfulness of their detention, as required by paragraph 4 of Article 5 (art. 5-4), was precluded. Article 5 para. 4 (art. 5-4) provides as follows: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." 64. The remedy of habeas corpus was available to the applicants in the present case, though they chose not to avail themselves of it. Such proceedings would have led to a review of the lawfulness of their arrest and detention under the terms of the 1984 Act and the applicable principles developed by case-law (see paragraphs 39-40 above). The Commission found that the requirements of Article 5 para. 4 (art. 5-4) were satisfied since the review available in Northern Ireland would have encompassed the procedural and substantive basis, under the Convention, for their detention. The Government have adopted the same reasoning. 65. According to the Court ’ s established case-law, the notion of "lawfulness" under paragraph 4 (art. 5-4) has the same meaning as in paragraph 1 (art. 5-1) (see notably the Ashingdane judgment of 28 May 1985, Series A no. 93, p. 23, para. 52); and whether an "arrest" or "detention" can be regarded as "lawful" has to be determined in the light not only of domestic law, but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 para. 1 (art. 5-1) (see notably the above-mentioned Weeks judgment, Series A no. 114, p. 28, para. 57). By virtue of paragraph 4 of Article 5 (art. 5-4), arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the "lawfulness", in the sense of the Convention, of their deprivation of liberty. This means that, in the instant case, the applicants should have had available to them a remedy allowing the competent court to examine not only compliance with the procedural requirements set out in section 12 of the 1984 Act but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention. As is shown by the relevant case-law, in particular the Van Hout and Lynch judgments (see paragraph 40 above), these conditions are met in the practice of the Northern Ireland courts in relation to the remedy of habeas corpus. Accordingly, there has been no violation of Article 5 para. 4 (art. 5-4). VI. ALLEGED BREACH OF ARTICLE 5 PARA. 5 (art. 5-5) 66. The applicants further alleged breach of Article 5 para. 5 (art. 5-5) which reads: "Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation." A claim for compensation for unlawful deprivation of liberty may be made in the United Kingdom in respect of a breach of domestic law (see paragraph 41 above on false imprisonment). As Article 5 (art. 5) is not considered part of the domestic law of the United Kingdom, no claim for compensation lies for a breach of any provision of Article 5 (art. 5) which does not at the same time constitute a breach of United Kingdom law. The Government argued, inter alia, that the aim of paragraph 5 (art. 5-5) is to ensure that the victim of an "unlawful" arrest or detention should have an enforceable right to compensation. In this regard, they have also contended that "lawful" for the purposes of the various paragraphs of Article 5 (art. 5) is to be construed as essentially referring back to domestic law and in addition as excluding any element of arbitrariness. They concluded that even in the event of a violation being found of any of the first four paragraphs, there has been no violation of paragraph 5 because the applicants ’ deprivation of liberty was lawful under Northern Ireland law and was not arbitrary. 67. The Court, like the Commission, considers that such a restrictive interpretation is incompatible with the terms of paragraph 5 (art. 5-5) which refers to arrest or detention "in contravention of the provisions of this Article". In the instant case, the applicants were arrested and detained lawfully under domestic law but in breach of paragraph 3 of Article 5 (art. 5-3). This violation could not give rise, either before or after the findings made by the European Court in the present judgment, to an enforceable claim for compensation by the victims before the domestic courts; this was not disputed by the Government. Accordingly, there has also been a breach of paragraph 5 (art. 5-5) in this case in respect of all four applicants. This finding is without prejudice to the Court ’ s competence under Article 50 (art. 50) in the matter of awarding compensation by way of just satisfaction (see the Neumeister judgment of 7 May 1974, Series A no. 17, p. 13, para. 30). VII. ALLEGED BREACH OF ARTICLE 13 (art. 13) 68. The applicants claimed before the Commission that they had no effective remedy in Northern Ireland in respect of their complaints under Article 5 (art. 5) and that consequently there was also a breach of Article 13 (art. 13) which provides as follows: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." In the light of the finding that there has been no violation of Article 5 para. 4 (art. 5-4) in this case, the Court does not deem it necessary to inquire whether the less strict requirements of Article 13 (art. 13) were complied with, especially as the applicants did not pursue this complaint before the Court (see, inter alia, the Bouamar judgment of 29 February 1988, Series A no. 129, p. 25, para. 65). VIII. APPLICATION OF ARTICLE 50 (art. 50) 69. By virtue of Article 50 (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 70. The applicants, three of whom have received legal aid before the Commission and the Court, did not submit any claim for reimbursement of costs and expenses, and this is not a matter which the Court has to examine of its own motion (see, as the most recent authority, the above-mentioned Bouamar judgment, ibid., p. 26, para. 68). 71. On the other hand, the applicants contended that "because the breaches were conscious and flagrant, exemplary damages or an enhanced award of damages ... would be appropriate". They suggested that compensation should be calculated on the basis of approximately £2000 (two thousand pounds) per hour for each hour of wrongful detention. The Government requested the Court to reserve the matter. In the circumstances of the case, the Court considers that the question of the application of Article 50 (art. 50) is not yet ready for decision in relation to the claim for compensation for prejudice suffered. It is therefore necessary to reserve the matter and to fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicants (Rule 53 paras. 1 and 4 of the Rules of Court). | The Court observed, among other things, that on 22 August 1984, the British Government had informed the Secretary General of the Council of Europe that they were withdrawing a notice of derogation issued under Article 15 of the Convention relying on the emergency situation in Northern Ireland. Consequently, there was no call in the present proceedings to consider whether any derogation from the United Kingdom’s obligations under the Convention might be permissible under Article 15 by reason of a terrorist campaign in Northern Ireland. Examination of the case had to proceed on the basis that the Articles of the Convention in respect of which complaints had been made remained fully applicable. This did not, however, preclude proper account being taken of the background circumstances of the case. In the context of Article 5 it was for the Court to determine the significance to be attached to those circumstances and to ascertain whether, in the instant case, the balance struck complied with the applicable provisions of that Article in the light of their particular wording and its overall object and purpose. The Court found that there had been a violation of Article 5 § 3 of the Convention, taking the view that it could not be considered that a period of four days and six hours, or even more, met the requirement of promptness. |
856 | Interception of communications, phone tapping and secret surveillance | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The interception, acquisition and disclosure of communication data 31. The provisions of domestic law which govern the interception, acquisition and disclosure of communication data (including Part I of the Regulation of Investigatory Powers Act 2000 (“RIPA”) together with the relevant sections of the Code) are set out in Kennedy v. the United Kingdom, no. 26839/05, § § 25 – 61, 18 May 2010. B. Surveillance 1. Re McE (Northern Ireland) [2009] UKHL 15 and Re C and Others [2007] NIQB 101 32. Like the applicant in the present case, the claimants in Re McE had sought to judicially review the PSNI ’ s refusal to grant assurances that their consultations with their legal representatives while in detention would not be the subject of covert surveillance. They asserted that the failure to provide assurances was incompatible with Articles 6 and 8 of the Convention; and that it breached both their common law right to legal professional privilege (“LPP”) and their statutory right to consult a legal advisor in private. 33. In the Divisional Court, where the case was referred to as Re C and Others [2007] NIQB 101, Kerr LCJ, giving the leading judgment, held that RIPA imposed limits on both the common law right of legal professional privilege and the statutory right to consult a lawyer privately while in detention. In relation to the claimants ’ Convention rights, he did not find any evidence that the possibility of surveillance in any way affected the fairness of their trials contrary to Article 6 §§ 1 or 3 (b). He did, however, consider that insufficient reasons had been given to justify why this form of surveillance was not subject to the enhanced safeguarding regime used in respect of intrusive surveillance. He therefore found that there had been a violation of Article 8 of the Convention. 34. Somewhat unusually, the claimants were granted leave to appeal to the House of Lords, where the case was referred to as Re McE (Northern Ireland) [2009] UKHL 15. Before the House of Lords, the sole issue was whether RIPA permitted covert surveillance of consultations with legal and medical advisors notwithstanding that such communication enjoyed LPP and there was a statutory right to consult these advisors in private. Lord Carswell, with whom Lords Hope and Neuberger and Lady Hale agreed, observed that RIPA and the relevant Code of Practice had clearly envisaged the surveillance of legal consultations. Relying on the Court ’ s case-law, he accepted that “covert surveillance of legal consultations should not be regarded as prohibited and unlawful in all possible circumstances” and found that in the present case there was a need to incorporate exceptions to the inviolability of privileged consultations. 35. Their Lordships unanimously agreed with the Divisional Court judgment that the authorisation regime relating to directed surveillance could not be considered to be adequate when put against the intrusiveness of covert surveillance of legal or medical consultations. 36. In respect of the Code of Practice, Lord Phillips of Worth Matravers noted that “The draughtsman of the Code appears to have preceded on the premise that: (i) it is undesirable that communications subject to LPP which are disclosed in consequence of authorised surveillance should be used in criminal or civil proceedings; (ii) such communications would not be admissible in criminal proceedings; (iii) knowledge of such communications could prejudice criminal or civil proceedings. None of these premises is axiomatic. I would expect the Strasbourg Court to require English law to state clearly what use, if any, is permitted to be made of material covered by LLP that is disclosed by surveillance. The majority have held that RIPA permits the Code to authorise surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the Convention. The Code does not at present do so in a manner which is compliant with the Convention. I would make this observation. Covert surveillance is of no value if those subject to it suspect that it may be taking place. If it is to take place in respect of consultations between solicitors and their clients in prison or the police station, it will be of no value unless this is such a rare occurrence that its possibility will not inhibit the frankness with which those in custody speak with their lawyers. It would seem desirable, if not essential, that the provisions of the Code should be such as to reassure those in custody that, save in exceptional circumstances, their consultations with their lawyers will take place in private. The chilling factor that LLP is intended to prevent will not then occur.” 37. Likewise, Lord Neuberger of Abbotsbury indicated that: “Lord Phillips has characterised the nature of the decision of the majority of your Lordships as being that RIPA permits the Code to authorise surveillance of communications between lawyers and their clients, whether or not in custody. That is indeed as far as our decision in this case goes, and we should not, I think, be taken as thereby endorsing the provisions of the Code, as we are not directly concerned with those provisions, and, in particular, whether they comply with the requirements of the Convention. Indeed, in my view, it must be highly questionable whether the Code sufficiently clearly identifies (or limits) either the circumstances in which surveillance may or may not occur, or how the information thereby obtained may or may not be used. At least as at present advised I share the doubts and concerns about the Code expressed by Lord Phillips [ ... ] .” 2. Amendments to the RIPA regime following Re McE (Northern Ireland) [2009] UKHL 15 38. As a consequence of the decision of the House of Lords in Re McE the Secretary of State produced the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (“the 2010 Order”). So far as relevant the 2010 Order provides, under Article 3, that directed surveillance carried out in relation to anything taking place in, inter alia, a police station used for the purpose of legal consultations should be treated, for the purposes of Part II of RIPA, as intrusive surveillance. 39. A Revised Code of Practice “the Revised Code”) was also drawn up and duly approved by both Houses of Parliament. Chapter 4 of the Revised Code specifically addressed legally privileged and confidential information (see paragraph 75 below). 3. The regime in place at the date of the applicant ’ s detention a. Directed and intrusive surveillance 40. Section 26 of RIPA defines directed and intrusive surveillance as follows: “(2) Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken — (a) for the purposes of a specific investigation or a specific operation; (b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and (c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance. (3) Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that — (a) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and (b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device. (4) For the purposes of this Part surveillance is not intrusive to the extent that— (a) it is carried out by means only of a surveillance device designed or adapted principally for the purpose of providing information about the location of a vehicle; or (b) it is surveillance consisting in any such interception of a communication as falls within section 48(4). (5) For the purposes of this Part surveillance which— (a) is carried out by means of a surveillance device in relation to anything taking place on any residential premises or in any private vehicle, but (b) is carried out without that device being present on the premises or in the vehicle, is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle. (6) For the purposes of this Part surveillance which— (a) is carried out by means of apparatus designed or adapted for the purpose of detecting the installation or use in any residential or other premises of a television receiver (within the meaning of the Wirelss Telegraphy Act 1949) and (b) is carried out from outside those premises exclusively for that purpose, is neither directed nor intrusive. ... (9) For the purposes of this section— (a) surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place; (b) a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and (c) a relationship is used covertly, and information obtained as mentioned in subsection (8)(c) is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question. (10) In this section “private information”, in relation to a person, includes any information relating to his private or family life. (11) References in this section, in relation to a vehicle, to the presence of a surveillance device in the vehicle include references to its being located on or under the vehicle and also include references to its being attached to it.” b. Authorisation α. Directed surveillance 41. According to paragraph 5.8 of the Revised Code, a written application for a directed surveillance authorisation should describe any conduct to be authorised and the purpose of the investigation or operation. The application should include the reasons why the authorisation is necessary in the particular case and on the grounds listed in section 28(3) of RIPA; the nature of the surveillance; the identities, where known, of those to be the subject of the surveillance; a summary of the intelligence case and appropriate unique intelligence references where applicable; an explanation of the information which it is desired to obtain as a result of the surveillance; the details of any potential collateral intrusion and why the intrusion is justified; the details of any confidential information that is likely to be obtained as a consequence of the surveillance; the reasons why the surveillance is considered proportionate to what it seeks to achieve; and the level of authority required (or recommended where that is different) for the surveillance. A subsequent record should be made of whether authorisation was given or refused, by whom, and the time and date this happened. 42. Section 30 of RIPA permits directed surveillance to be authorised by individuals holding such office, rank or position with relevant public authorities as prescribed by the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010. In the case of the PSNI, only an officer of (or above) the rank of Superintendent may authorise directed surveillance. 43. Pursuant to paragraph 5.5 of the Revised Code, except in urgent cases the authorising officer must give authorisation in writing. 44. Section 28 of RIPA sets out the requirements for granting the authorisation of directed surveillance: “(1) Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance. (2) A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes— (a) that the authorisation is necessary on grounds falling within subsection (3); and (b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out. (3) An authorisation is necessary on grounds falling within this subsection if it is necessary — (a) in the interests of national security; (b) for the purpose of preventing or detecting crime or of preventing disorder; (c) in the interests of the economic well-being of the United Kingdom; (d) in the interests of public safety; (e) for the purpose of protecting public health; (f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or (g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State. (4) The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that — (a) consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and (b) is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation. (5) The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.” 45. In urgent cases paragraph 5.9 permits the necessary information to be supplied orally. Where this happens the authorising officer and the applicant should also record the following information as soon as it is reasonably practicable to do so: the identities of those subject to surveillance; the nature of the surveillance; the reasons why the authorising officer considered the case so urgent that an oral instead of a written authorisation was given; and where the officer entitled to act in urgent cases has given written authority, the reasons why it was not reasonably practicable for the application to be considered by the authorising officer. 46. In such cases authorisation may be given orally by the authorising officer or in writing by an officer entitled to act in urgent cases. A record that the authorising officer has expressly authorised the action should be recorded in writing by both the authorising officer and applicant as soon as reasonably practicable. 47. Paragraph 5.6 of the Revised Code states that a case is not normally to be regarded as urgent unless the time that would elapse before the authorising officer was available to grant the authorisation would, in the judgment of the person giving the authorisation, be likely to endanger life or jeopardise the investigation or operation for which the authorisation had been given. An application was not to be regarded as urgent where the need for an authorisation had been neglected or the urgency was of the authorising officer or the applicant ’ s own making. β. Intrusive surveillance 48. According to paragraph 6.19 of the Revised Code, applications for intrusive surveillance operations need to set out a wide range of information about the authorisation in question, including the reasons why the authorisation is necessary in the particular case and on the grounds listed in section 32(3) of the 2000 Act; the nature of the surveillance; the residential premises or private vehicle in relation to which the surveillance will take place, where known; the identities, where known, of those to be the subject of the surveillance; an explanation of the information which it is desired to obtain as a result of the surveillance; details of any potential collateral intrusion and why the intrusion is justified; details of any confidential information that is likely to be obtained as a consequence of the surveillance; and the reasons why the surveillance is considered proportionate to what it seeks to achieve. A record should be made of whether the authorisation was given or refused, by whom and the time and date at which this happened. 49. Section 32 of RIPA sets out the requirements for granting the authorisation of intrusive surveillance: “ (1) Subject to the following provisions of this Part, the Secretary of State and each of the senior authorising officers shall have power to grant authorisations for the carrying out of intrusive surveillance. (2) Neither the Secretary of State nor any senior authorising officer shall grant an authorisation for the carrying out of intrusive surveillance unless he believes— (a) that the authorisation is necessary on grounds falling within subsection (3); and (b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out. (3) Subject to the following provisions of this section, an authorisation is necessary on grounds falling within this subsection if it is necessary— (a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; or (c) in the interests of the economic well-being of the United Kingdom. (4) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any authorisation shall include whether the information which it is thought necessary to obtain by the authorised conduct could reasonably be obtained by other means. (5) The conduct that is authorised by an authorisation for the carrying out of intrusive surveillance is any conduct that— (a) consists in the carrying out of intrusive surveillance of any such description as is specified in the authorisation; (b) is carried out in relation to the residential premises specified or described in the authorisation or in relation to the private vehicle so specified or described; and (c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described. (6) For the purposes of this section the senior authorising officers are— ... ... ... (e) the Chief Constable of the Royal Ulster Constabulary and the Deputy Chief Constable of the Royal Ulster Constabulary; ... ” 50. Section 32(6) of RIPA provides a list of senior authorising officers. In the case of the PSNI, the senior authorising officer is the Chief Constable. 51. Paragraph 6.6 of the Revised Code provides that the senior authorising officer or designated deputy should generally give authorisations in writing. 52. According to section 35(1), once authorisation is granted notice of the grant must be given to a Surveillance Commissioner. The Surveillance Commissioner must then scrutinise the authorisation and decide whether or not to approve it (section 35(4)). Unless the case is one of urgency, the authorisation of intrusive surveillance by a senior authorising officer will not take effect until a Surveillance Commissioner has given written notice of his approval (section 36(2) and (3)). 53. In urgent cases paragraph 6.20 of the Revised Code allows information required at the time of application to be supplied orally. Where this occurs the applicant should record the following information as soon as reasonably practicable: the identities of those subject to the surveillance; the nature and location of the surveillance; the reasons why the authorising officer or the officer entitled to act in urgent cases considered the case so urgent that an oral instead of written authorisation was given; and/or the reasons why it was not reasonably practicable for the application to be considered by the authorising officer. 54. Pursuant to paragraph 6.6, oral authorisations may be given by the senior authorising officer or designated deputy and a statement that he or she has expressly authorised the conduct should be recorded in writing by the applicant as soon as reasonably practicable. Where it is not reasonably practicable having regard to the urgency of the case for either the senior authorising officer or the designated deputy to consider the application, paragraph 6.7 provides that an authorisation may be granted in writing by a person entitled to act only in urgent cases by section 34(4) of RIPA. 55. Pursuant to paragraph 6.8, a case is not normally to be regarded as urgent unless the time that would elapse before the authorising officer was available to grant the authorisation would, in the judgment of the person giving the authorisation, be likely to endanger life or jeopardise the investigation or operation for which the authorisation had been given. An application was not to be regarded as urgent where the need for an authorisation had been neglected or the urgency was of the authorising officer or the applicant ’ s own making. 56. When the authorisation is urgent it will take effect from the time it is granted provided notice is given to a Surveillance Commissioner. γ. Rules and guidance applicable to both 57. Section 81(2)(b) RIPA defines “serious crime” as crime which satisfies one of the following criteria: “(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more; (b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.” 58. Section 81(5) provides: “For the purposes of this Act detecting crime shall be taken to include– (a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and (b) the apprehension of the person by whom any crime was committed; and any reference in this Act to preventing or detecting serious crime shall be construed accordingly ...” 59. Paragraphs 3.1 to 3.7 of the Revised Code provide additional guidance on the application of the necessity and proportionality test in respect of both directed and intrusive surveillance: “ The 2000 Act, 1997 Act and 1994 Act stipulate that the person granting an authorisation or warrant for directed or intrusive surveillance, or interference with property, must believe that the activities to be authorised are necessary on one or more statutory grounds. If the activities are deemed necessary on one of more of the statutory grounds, the person granting the authorisation or warrant must also believe that they are proportionate to what is sought to be achieved by carrying them out. This involves balancing the seriousness of the intrusion into the privacy of the subject of the operation (or any other person who may be affected) against the need for the activity in investigative and operational terms. The authorisation will not be proportionate if it is excessive in the overall circumstances of the case. Each action authorised should bring an expected benefit to the investigation or operation and should not be disproportionate or arbitrary. The fact that a suspected offence may be serious will not alone render intrusive actions proportionate. Similarly, an offence may be so minor that any deployment of covert techniques would be disproportionate. No activity should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means. The following elements of proportionality should therefore be considered: It is important therefore that all those involved in undertaking directed or intrusive surveillance activities or interference with property under the 2000 Act, 1997 Act or 1994 Act are fully aware of the extent and limits of the authorisation or warrant in question. ” 60. With regard to collateral intrusion, paragraphs 3.8 to 3.10 of the Revised Code provide that: “Before authorising applications for directed or intrusive surveillance, the authorising officer should also take into account the risk of obtaining private information about persons who are not subjects of the surveillance or property interference activity (collateral intrusion). Measures should be taken, wherever practicable, to avoid or minimise unnecessary intrusion into the privacy of those who are not the intended subjects of the surveillance activity. Where such collateral intrusion is unavoidable, the activities may still be authorised, provided this intrusion is considered proportionate to what is sought to be achieved. The same proportionality tests apply to the likelihood of collateral intrusion as to intrusion into the privacy of the intended subject of the surveillance. All applications should therefore include an assessment of the risk of collateral intrusion and details of any measures taken to limit this, to enable the authorising officer fully to consider the proportionality of the proposed actions.” 61. Pursuant to paragraph 3.27 of the Revised Code, where authorisations were granted orally under urgency procedures a record detailing the actions authorised and the reasons why the urgency procedures were used should be recorded by the applicant and the authorising officer as a priority. There would then be no requirement to submit a full written application. c. Review of authoritsations 62. Paragraphs 3.22 to 3.26 of the Revised Code provides for the regular review of authorisations: “Regular reviews of all authorisations should be undertaken to assess the need for the surveillance or property interference activity to continue. The results of a review should be retained for at least three years (see Chapter 8). Particular attention is drawn to the need to review authorisations frequently where the surveillance or property interference involves a high level of intrusion into private life or significant collateral intrusion, or confidential information is likely to be obtained. In each case the frequency of reviews should be considered at the outset by the authorising officer or, for those subject to authorisation by the Secretary of State, the member or officer who made the application within the public authority concerned. This should be as frequently as is considered necessary and practicable. In some cases it may be appropriate for an authorising officer to delegate the responsibility for conducting any reviews to a subordinate officer. The authorising officer is, however, usually best placed to assess whether the authorisation should continue or whether the criteria on which he based the original decision to grant an authorisation have changed sufficiently to cause the authorisation to be revoked. Support staff can do the necessary research and prepare the review process but the actual review is the responsibility of the original authorising officer and should, as a matter of good practice, be conducted by them or, failing that, by an officer who would be entitled to grant a new authorisation in the same terms. Any proposed or unforeseen changes to the nature or extent of the surveillance operation that may result in the further or greater intrusion into the private life of any person should also be brought to the attention of the authorising officer by means of a review. The authorising officer should consider whether the proposed changes are proportionate (bearing in mind any extra intended intrusion into privacy or collateral intrusion), before approving or rejecting them. Any such changes must be highlighted at the next renewal if the authorisation is to be renewed. Where a directed or intrusive surveillance authorisation provides for the surveillance of unidentified individuals whose identity is later established, the terms of the authorisation should be refined at a review to include the identity of these individuals. It would be appropriate to convene such a review specifically for this purpose. This process will not require a fresh authorisation, providing the scope of the original authorisation envisaged surveillance of such individuals. Such changes must be highlighted at the next renewal if the authorisation is to be renewed. ” d. Duration and renewal of authorisation α. Directed surveillance 63. Pursuant to paragraphs 5.10 and 5.11 of the Revised Code, a written authorisation granted by an authorising officer will cease to have effect (unless renewed or cancelled) at the end of a period of three months beginning with the time at which it took effect, while urgent oral authorisations or written authorisations granted by a person who is entitled to act only in urgent cases will, unless renewed, cease to have effect after seventy-two hours beginning with the time the authorisation was granted. 64. Paragraph 5.13 provides that at any time before a directed surveillance authorisation (other than one granted by a member of the intelligence services) would cease to have effect, the authorising officer may renew it in writing for a period of three months if he or she considers it necessary for the authorisation to continue for the purpose for which it was given. Renewals may also be granted orally in urgent cases and last for a period of seventy-two hours. The renewal will take effect at the time at which the authorisation would have ceased to have effect but for the renewal. 65. According to paragraph 5.15 of the Revised Code all applications for the renewal of a directed surveillance authorisation should record, either at the time of authorisation or, in the case of urgent cases renewed orally, when reasonably practicable: whether it is the first renewal or every occasion on which renewal was previously authorised; any significant changes to the information in the initial application; the reasons why the authorisation should continue; the content and value to the investigation or operation of the information so far obtained by the surveillance; and the results of regular reviews of the investigation or operation. β. Intrusive surveillance 66. Paragraph 6.23 of the Revised Code provides that a written authorisation granted by the Secretary of State, a senior authorising officer or a designated deputy will cease to have effect (unless renewed) at the end of a period of three months beginning with the day on which it took effect. Oral authorisations given in urgent cases by the Secretary of State, a senior authorising officer or designated deputy, and written authorisations given by those entitled to act in urgent cases, will cease to have effect (unless renewed) at the end of the period of seventy-two hours beginning with the time when they took effect. 67. If, at any time before the authorisation expires, the senior authorising officer or, in his absence, the designated deputy considers that the authorisation should continue to have effect for the purpose for which it was issued, paragraph 6.27 of the Revised Code permits him to renew it in writing for a further period of three months. As with the initial authorisation, paragraph 6.28 requires the senior authorising officer to seek the approval of a Surveillance Commissioner. The renewal will not take effect until the notice of the Surveillance Commissioner ’ s approval has been received in the office of the person who granted the authorisation within the relevant force or organisation (but not before the day on which the authorisation would otherwise have ceased to have effect). In urgent cases, paragraph 6.29 permits a renewal to take effect immediately, provided that this is not before the day on which the authorisation would otherwise have ceased to have effect. 68. Pursuant to paragraph 6.30, all applications for a renewal of an intrusive surveillance should record whether it is the first renewal or every occasion on which the authorisation was previously renewed; any significant changes to the information provided in the original application; the reason why it is necessary to continue with intrusive surveillance; the content and value to the investigation or operation of the product so far obtained by the authorisation; and the results of any reviews of the investigation or operation. e. Cancellation of authorisation α. Directed surveillance 69. Paragraph 5.17 of the Revised Code provides that during a review, the authorising officer who granted or last renewed the authorisation may amend specific aspects of the authorisation. He or she must cancel an authorisation if satisfied that the directed surveillance as a whole no longer meets the criteria upon which it was authorised. According to paragraph 5.18, as soon as the decision is taken that directed surveillance should be discontinued, the instruction must be given to those involved to stop all surveillance of the subject. The date that the authorisation was cancelled should be centrally recorded and documentation of any instruction to cease surveillance should be retained. β. Intrusive surveillance 70. According to paragraph 6.32, the senior authorising officer who granted or last renewed the authorisation must cancel it if he is satisfied that the surveillance no longer meets the criteria upon which it was authorised. Paragraph 6.33 further provides that as soon as the decision is taken that intrusive surveillance should be discontinued, the instruction must be given to those involved to stop the intrusive surveillance. The date the authorisation was cancelled should be centrally recorded and documentation of any instruction to cease surveillance should be retained. Following cancellation of any intrusive surveillance, other than one granted by the Secretary of State, paragraph 6.34 requires that the Surveillance Commissioners be notified of the cancellation. 71. Where a police authorisation is quashed or cancelled by a Surveillance Commissioner, paragraph 6.35 requires that the senior authorising officer immediately instruct those involved to stop carrying out the intrusive surveillance. f. Handling, use and destruction of material 72. Chapter 9 of the Revised Code provides, as relevant: “ Use of material as evidence 9.1 Subject to the provisions in chapter 4 of this Code, material obtained through directed or intrusive surveillance, or entry on, or interference with, property or wireless telegraphy, may be used as evidence in criminal proceedings. The admissibility of evidence is governed primarily by the common law, the Civil Procedure Rules, section 78 of the Police and Criminal Evidence Act 1984 and the Human Rights Act 1998. 9.2 Any decisions by a Surveillance Commissioner in respect of granting prior approval for intrusive surveillance activity or entry on, or interference with, property or with wireless telegraphy, shall not be subject to appeal or be liable to be questioned in any court. Retention and destruction of material 9.3 Each public authority must ensure that arrangements are in place for the secure handling, storage and destruction of material obtained through the use of directed or intrusive surveillance or property interference. Authorising officers, through their relevant Data Controller, must ensure compliance with the appropriate data protection requirements under the Data Protection Act 1998 and any relevant codes of practice produced by individual authorities relating to the handling and storage of material. 9.4 Where the product of surveillance or interference with property or wireless telegraphy could be relevant to pending or future criminal or civil proceedings, it should be retained in accordance with established disclosure requirements for a suitable further period, commensurate to any subsequent review. 9.5 There is nothing in the 2000 Act, 1994 Act or 1997 Act which prevents material obtained under directed or intrusive surveillance or property interference authorisations from being used to further other investigations. Law enforcement agencies 9.6 In the cases of the law enforcement agencies, particular attention is drawn to the requirements of the code of practice issued under the Criminal Procedure and Investigations Act 1996. This requires that material which is obtained in the course of a criminal investigation and which may be relevant to the investigation must be recorded and retained.” g. Records 73. Paragraphs 8.1 and 8.2 of the Revised Code provide: “A record of the following information pertaining to all authorisations shall be centrally retrievable within each public authority for a period of at least three years from the ending of each authorisation. This information should be regularly updated whenever an authorisation is granted, renewed or cancelled and should be made available to the relevant Commissioner or an Inspector from the Office of Surveillance Commissioners upon request. The following documentation should also be centrally retrievable for at least three years from the ending of each authorisation: h. Special rules on communications subject to legal privilege 74. Paragraph 2.18 of the Revised Code provides that: “The 2010 Order provides that directed surveillance that is carried out in relation to anything taking place on so much of any premises specified in Article 3(2) of the Order as is, at any time during the surveillance, used for the purpose of legal consultations shall be treated for the purposes of Part II of the 2000 Act as intrusive surveillance. The premises identified in article 3(2) are: (a) any place in which persons who are serving sentences of imprisonment or detention, remanded in custody or committed in custody for trial or sentence may be detained; (b) any place in which persons may be detained under paragraph 16(1), (1A) or (2) of Schedule 2 or paragraph 2(2) or (3) of Schedule 3 to the Immigration Act 1971 or section 36(1) of the UK Border Act 2007; (c) police stations; (d) hospitals where high security psychiatric services are provided; (e) the place of business of any professional legal adviser; and (f) any place used for the sittings and business of any court, tribunal, inquest or inquiry.” 75. Chapter 4, which was added to the Revised Code following the judgment of the House of Lords in Re McE, provides further guidance in respect of legally privileged and confidential information: “ Overview 4.1 The 2000 Act does not provide any special protection for ‘ confidential information ’, although the 1997 Act makes special provision for certain categories of confidential information. Nevertheless, particular care should be taken in cases where the subject of the investigation or operation might reasonably expect a high degree of privacy, or where confidential information is involved. Confidential information consists of communications subject to legal privilege, communications between a Member of Parliament and another person on constituency matters, confidential personal information, or confidential journalistic material. So, for example, extra care should be taken where, through the use of surveillance, it is likely that knowledge will be acquired of communications between a minister of religion and an individual relating to the latter ’ s spiritual welfare, or between a Member of Parliament and a constituent relating to constituency matters, or wherever matters of medical or journalistic confidentiality or legal privilege may be involved. References to a Member of Parliament include references to Members of both Houses of the UK Parliament, the European Parliament, the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. 4.2 Authorisations under the 1997 Act likely to result in the acquisition of knowledge of matters subject to legal privilege, confidential personal information or confidential journalistic material require (other than in urgent cases) the approval of a Surveillance Commissioner. 4.3 Authorisations for directed surveillance of legal consultations falling within the 2010 Order must comply with the enhanced authorisation regime described below. In cases where it is likely that knowledge of confidential information will be acquired, the use of covert surveillance is subject to a higher level of authorisation eg a Chief Officer. Annex A lists the authorising officer for each public authority permitted to authorise such surveillance. Material subject to legal privilege: introduction 4.4 Covert surveillance likely or intended to result in the acquisition of knowledge of matters subject to legal privilege may take place in circumstances covered by the 2010 Order, or in other circumstances. Similarly, property interference may be necessary in order to effect surveillance described in the 2010 Order, or in other circumstances where knowledge of matters subject to legal privilege is likely to be obtained. 4.5 The 2010 Order provides that directed surveillance that is carried out in relation to anything taking place on so much of any premises specified in article 3(2) of the Order as is, at any time during the surveillance, used for the purposes of ‘ legal consultations ’ shall be treated for the purposes of Part II of the 2000 Act as intrusive surveillance. 4.6 The 2010 Order defines ‘ legal consultation ’ for these purposes. It means: (a) a consultation between a professional legal adviser and his client or any person representing his client, or (b) a consultation between a professional legal adviser or his client or any such representative and a medical practitioner made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings. 4.7 The definition of ‘ legal consultation ’ in the 2010 Order does not distinguish between legal consultations which are legally privileged, wholly or in part, and legal consultations which may be in furtherance of a criminal purpose are therefore not protected by legal privilege. Covert surveillance of all legal consultations covered by the 2010 Order (whether protected by legal privilege or not) is to be treated as intrusive surveillance. 4.8 ‘ Legal privilege ’ is defined in section 98 of the 1997 Act. This definition should be used to determine how to handle material obtained through surveillance authorised under RIPA, including through surveillance which is treated as intrusive surveillance as a result of the 2010 Order. As discussed below, special safeguards apply to matters subject to legal privilege. 4.9 Under the definition in the 1997 Act, legal privilege does not apply to communications or items held, or oral communications made, with the intention of furthering a criminal purpose (whether the lawyer is acting unwittingly or culpably). Legally privileged communications or items will lose their protection for these other purposes if the professional legal adviser intends to hold or use them for a criminal purpose. But privilege is not lost if a professional legal adviser is properly advising a person who is suspected of having committed a criminal offence. Tests to be applied when authorising or approving covert surveillance or property interference likely or intended to result in the acquisition of knowledge of matters subject to legal privilege 4.10 All applications for covert surveillance or property interference that may result in the acquisition of knowledge of matters subject to legal privilege should state whether the covert surveillance or property interference is intended to obtain knowledge of matters subject to legal privilege as defined by section 98 of the 1997 Act. 4.11 If the covert surveillance or property interference is not intended to result in the acquisition of knowledge of matters subject to legal privilege, but it is likely that such knowledge will nevertheless be acquired during the operation, the application should identify all steps which will be taken to mitigate the risk of acquiring it. If the risk cannot be removed entirely, the application should explain what steps will be taken to ensure that any knowledge of matters subject to legal privilege which is obtained is not used in law enforcement investigations or criminal prosecutions. 4.12 Where covert surveillance or property interference is likely or intended to result in the acquisition of knowledge of matters subject to legal privilege, an authorisation shall only be granted or approved if the authorising officer, Secretary of State or approving Surveillance Commissioner, as appropriate, is satisfied that there are exceptional and compelling circumstances that make the authorisation necessary: 4.13 Further, in considering any authorisation for covert surveillance or property interference likely or intended to result in the acquisition of knowledge of matters subject to legal privilege, the authorising officer, Secretary of State or approving Surveillance Commissioner, as appropriate, must be satisfied that the proposed covert surveillance or property interference is proportionate to what is sought to be achieved. In relation to intrusive surveillance, including surveillance to be treated as intrusive as a result of the 2010 Order, section 32(4) will apply. 4.14 Directed surveillance likely to result in the acquisition of knowledge of matters subject to legal privilege may be authorised only by authorising officers entitled to grant authorisations in respect of confidential information. Intrusive surveillance, including surveillance which is treated as intrusive by virtue of the 2010 Order, or property interference likely to result in the acquisition of material subject to legal privilege may only be authorised by authorising officers entitled to grant intrusive surveillance or property interference authorisations. 4.15 Property interference likely to result in the acquisition of such material is subject to prior approval by a Surveillance Commissioner (unless the Secretary of State is the relevant authorising officer or the case is urgent). Intrusive surveillance, including surveillance which is treated as intrusive by virtue of the 2010 Order, is subject to prior approval by a Surveillance Commissioner (unless the Secretary of State is the relevant authorising officer or the case is urgent). Surveillance under the 2010 Order 4.16 As noted above, the 20 10 Order provides that directed surveillance that is carried out in relation to anything taking place on so much of any premises specified in article 3(2) of the Order as is, at any time during the surveillance, used for the purposes of ‘ legal consultations ’ shall be treated for the purposes of Part II of the 2000 Act as intrusive surveillance. 4.17 As a result of the 2010 Order, such surveillance cannot be undertaken without the prior approval of a Surveillance Commissioner (with the exception of urgent authorisations or authorisations granted by the Secretary of State). 4.18 The locations specified in the Order are: (a) any place in which persons who are serving sentences of imprisonment or detention, remanded in custody or committed in custody for trial or sentence may be detained; (b) any place in which persons may be detained under paragraph 16(1), (1A) or (2) of Schedule 2 or paragraph 2(2) or (3) of Schedule 3 to the Immigration Act 1971 or section 36(1) of the UK Border Act 2007; (c) any place in which persons may be detained under Part VI of the Criminal Procedure (Scotland) Act 1995, the Mental Health (Care and Treatment) (Scotland ) Act 2003 or the Mental Health Act 1983; (d) police stations; (e) the place of business of any professional legal adviser; (f) any place used for the sittings and business of any court, tribunal, inquest or inquiry. 4.19 With the exception of urgent applications and authorisations granted by the Secretary of State, authorisations for surveillance which is to be treated as intrusive surveillance as a result of the 2010 Order shall not take effect until such time as: (a) the authorisation has been approved by a Surveillance Commissioner; and b) written notice of the Commissioner ’ s decision to approve the authorisation has been given to the authorising officer. 4.20 If an authorisation is to be granted by the Secretary of State, the provisions in Chapter 6 apply. Property interference under the 1997 Act likely to result in the acquisition of knowledge of matters subject to legal privilege 4.21 With the exception of urgent authorisations, where it is believed that the action authorised is likely to result in the acquisition of knowledge of matters subject to legal privilege an authorisation under the 1997 Act shall not take effect until such time as: (a) the authorisation has been approved by a Surveillance Commissioner; and b) written notice of the Commissioner ’ s decision to approve the authorisation has been given to the authorising officer. The use and handling of matters subject to legal privilege 4.22 Matters subject to legal privilege are particularly sensitive and surveillance which acquires such material may give rise to issues under Article 6 of the ECHR (right to a fair trial) as well as engaging Article 8. 4.23 Where public authorities deliberately acquire knowledge of matters subject to legal privilege, they may use that knowledge to counter the threat which led them to acquire it, but it will not be admissible in court. Public authorities should ensure that knowledge of matters subject to legal privilege, whether or not it is acquired deliberately, is kept separate from law enforcement investigations or criminal prosecutions. 4.24 In cases likely to result in the acquisition of knowledge of matters subject to legal privilege, the authorising officer or Surveillance Commissioner may require regular reporting so as to be able to decide whether the authorisation should continue. In those cases where legally privileged material has been acquired and retained, the matter should be reported to the authorising officer by means of a review and to the relevant Commissioner or Inspector during his next inspection (at which the material should be made available if requested). 4.25 A substantial proportion of the communications between a lawyer and his client(s) may be subject to legal privilege. Therefore, in any case where a lawyer is the subject of an investigation or operation, authorising officers should consider whether the special safeguards outlined in this chapter apply. Any material which has been retained from any such investigation or operation should be notified to the relevant Commissioner or Inspector during his next inspection and made available on request. 4.26 Where there is any doubt as to the handling and dissemination of knowledge of matters which may be subject to legal privilege, advice should be sought from a legal adviser within the relevant public authority before any further dissemination of the information takes place. Similar advice should also be sought where there is doubt over whether information is not subject to legal privilege due to the “in furtherance of a criminal purpose” exception. The retention of legally privileged material, or its dissemination to an outside body, should be accompanied by a clear warning that it is subject to legal privilege. It should be safeguarded by taking reasonable steps to ensure there is no possibility of it becoming available, or its contents becoming known, to any person whose possession of it might prejudice any criminal or civil proceedings to which the information relates. Any dissemination of legally privileged material to an outside body should be notified to the relevant Commissioner or Inspector during his next inspection. Confidential information 4.27 Special consideration must also be given to authorisations that involve confidential personal information, confidential constituent information and confidential journalistic material. Where such material has been acquired and retained, the matter should be reported to the relevant Commissioner or Inspector during his next inspection and the material be made available to him if requested. 4.28 Confidential personal information is information held in confidence relating to the physical or mental health or spiritual counselling of a person (whether living or dead) who can be identified from it. Such information, which can include both oral and written communications, is held in confidence if it is held subject to an express or implied undertaking to hold it in confidence or it is subject to a restriction on disclosure or an obligation of confidentiality contained in existing legislation. Examples include consultations between a health professional and a patient, or information from a patient ’ s medical records. 4.29 Confidential constituent information is information relating to communications between a Member of Parliament and a constituent in respect of constituency matters. Again, such information is held in confidence if it is held subject to an express or implied undertaking to hold it in confidence or it is subject to a restriction on disclosure or an obligation of confidentiality contained in existing legislation. 4.30 Confidential journalistic material includes material acquired or created for the purposes of journalism and held subject to an undertaking to hold it in confidence, as well as communications resulting in information being acquired for the purposes of journalism and held subject to such an undertaking. 4.31 Where there is any doubt as to the handling and dissemination of confidential information, advice should be sought from a legal adviser within the relevant public authority before any further dissemination of the material takes place. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 97. The applicant complained that the regime for covert surveillance of consultations between detainees and their lawyers, medical personnel, and appropriate adults was in breach of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 98. The Government contested that argument. 99. Following receipt of the Government ’ s observations, the applicant accepted that he did not consult with any medical personnel until 7 May 2010, by which time the High Court had directed that consultations with his solicitor and his medical advisor should not be subject to covert surveillance (see paragraphs 20 – 21 above). He therefore accepted that he could not have suffered any interference with his Article 8 rights in this regard. A. Lawyer/client consultations 1. Admissibility 100. The Court is satisfied that this complaint raises complex issues of fact and law, such that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits a. The parties ’ submissions α. The applicant 101. The applicant argued that Article 8 was clearly engaged by the covert surveillance of consultations with his legal advisor. Although he accepted that the purposes identified in the legislation permitting covert surveillance amounted to a legitimate aim, he maintained that the relevant legal framework failed both the “quality of law” and “necessity” tests under paragraph 2 of Article 8 of the Convention. 102. The applicant submitted that the combined effect of Part II of RIPA, the Revised Code and the PSNI Service Procedure did not provide, in relation to covert surveillance of lawyer/client consultations, the “adequate and effective guarantees against abuse” required by Article 8 of the Convention, especially when compared with the clear and precise statutory guidelines outlined in Part I of RIPA in respect of the interception of communications ( see Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010 ). 103. Unlike Part I of RIPA, Part II, read together with the Revised Code, did not indicate with sufficient clarity the test for authorising covert surveillance of lawyer-client consultations; in particular, paragraph 4.12 of the Revised Code only provided examples of when surveillance intended to result in the acquisition of legally privileged material would be permitted, for example “where there is a threat to life or limb, or to national security”. In any case, the applicant argued that in view of the importance and sensitivity of the issue, any “threat to life or limb” should have to be “real or immediate”. 104. Moreover, the procedures for the handling, dissemination and destruction of legally privileged material were not sufficiently precise and did not satisfy the minimum safeguards identified by the Court in Valenzuela Contreras v. Spain, 30 July 1998, Reports of Judgments and Decisions 1998 ‑ V. Although the applicant acknowledged that Valenzuela Contreras was an “interception case”, he argued that the principles derived from the Court ’ s “interception” case-law could be “read across” to the present case because, first, the Court had not drawn a distinction between the principles which applied in interception cases and covert- surveillance cases; secondly, it was the nature and degree of intrusion in certain types of covert surveillance cases which allowed the Court to “read across” from the principles set out in interception cases; thirdly, any distinction was therefore not appropriate when dealing with covert surveillance of the kind in issue in the present case; and finally, given that both types of case involved the handling of material obtained as a result of listening to and recording private conversations, it was difficult to see what valid distinction could be made between an interception operation and a covert - surveillance operation of the kind at issue in the present case. 105. The applicant pointed to paragraph 9.3 of the Revised Code, which provided that each public authority had to ensure that arrangements were in place for the secure handling and destruction of material obtained through directed or intrusive surveillance. This was the function of the PSNI Service Procedure, which went much further than the Code in providing for limits on dissemination, storage, access, retention and destruction. However, it was not in force at the relevant time and, in any case, the applicant contended that such important matters should not be left to the discretion of the individual public authorities. 106. The applicant acknowledged the existence of the July 2005 Criminal Procedure and Investigations Act 1996 Code of Practice for Northern Ireland (“the CIPA Code”), which set out the manner in which police officers were to record, retain and reveal to the prosecutor material obtained in a criminal investigation which may be relevant to the investigation. However, he submitted that the different legislative schemes taken together did not present a clear picture or provide sufficient clarity to enable an individual to be able to ascertain the arrangements for handling any material obtained as a result of covert surveillance of his legal consultations. 107. Finally, the applicant argued that even if the interference with his Article 8 rights was “ in accordance with the law ”, it was not “necessary in a democratic society”. Consultations between a detainee and his legal advisor were particularly sensitive in view of the fundamental rights at stake, and yet the detainee could only avoid covert surveillance by electing not to speak to his lawyer. As such, the legislation had the potential to undermine some of the basic protections underlying the criminal justice system in the United Kingdom. β. The Government 108. The Government accepted that the applicant could claim to be a victim of an alleged violation of Article 8 in relation to his legal consultations with his solicitor between 4 May 2010 and 6 May 20 10. It also noted that it did not appear to be in dispute that the surveillance pursued a legitimate aim for the purposes of Article 8 § 2 of the Convention. 109. The Government argued that any interference was “ in accordance with the law ” : it had its basis in domestic law; the law in question was accessible as it took the form of primary and secondary legislation and a published Revised Code (the Government accepted that it could not rely on the PSNI Service Procedure in the present case as it was not issued until 22 June 2010); and finally, the law was sufficiently foreseeable. 110. In particular, the law at issue indicated the scope of the PSNI ’ s discretionary power with sufficient clarity, as it afforded citizens an adequate indication of the circumstances in which the PSNI was empowered to authorise intrusive surveillance of legal consultations in police stations. Insofar as the applicant argued that the Revised Code did not satisfy the detailed requirements set out in Valenzuela-Contreras v. Spain (because it did not make provision for the destruction of legally privileged material obtained as a result of intrusive surveillance and did not set a test for the circumstances in which retention or onward dissemination could occur), the Government contended that that case concerned interception powers and had not been applied by the Court in cases concerning covert surveillance. Indeed, the Government maintained that in view of the wide range of surveillance powers, and the wide range of circumstances in which they might properly be deployed, it would be inappropriate as a matter of principle to be overly prescriptive as to the specific features that must be present within any surveillance regime. 111. In the Government ’ s submission, the true test was therefore whether the “manner of [the] exercise” of the PSNI ’ s discretionary power to conduct surveillance of legal consultations was indicated in the law with sufficient clarity to give the individual adequate protection against arbitrary interference; and that test was clearly satisfied in the present case. The Revised Code obliged the PSNI to put in place arrangements for the secure handling, storage and destruction of material obtained through the use of directed or intrusive surveillance; if the PSNI obtained legally privileged material through intrusive surveillance of legal consultations, that material had to be kept separate from any criminal investigation or prosecution and handled in accordance with the Revised Code; pursuant to the fifth data protection principle in the Data Protection Act 1998, the retained material would in general need to be destroyed once its retention was no longer necessary for the purpose for which the PSNI had been processing it; if legally privileged material was disseminated by the PSNI to another body, it had to be accompanied by a clear warning that it was subject to legal privilege, the Surveillance Commissioners would have to be notified during their next inspection and any dissemination would have to be compatible with the Data Protection Act; and finally, insofar as intrusive surveillance by the PSNI resulted in the acquisition of material that was not legally privileged, its retention and potential use or disclosure in any subsequent criminal proceedings was governed by the detailed Criminal Procedure and Investigations Act 1996 Code of Practice. 112. The Government referred to Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 92 – 92, 28 June 2007, which indicated that the Court should consider evidence of the actual operation of the system of surveillance, in particular whether it was working properly or whether it was subject to abuse. In the United Kingdom only one intrusive surveillance order had been granted in the three years since the 2010 Order came into force. It was therefore clear that in practice authorisations were only being granted in highly exceptional cases. 113. In the alternative, the Government argued that if the standards developed in the context of interception of communications ought to be applied in the present case, the above regime satisfied them. 114. The Government further submitted that the regime satisfied the requirement of “ necessity ”. Indeed, the Contracting States enjoyed a wide margin of appreciation in determining the precise conditions under which a system of covert surveillance was to be operated; and in the present case the safeguards offered adequate and effective guarantees against abuse: only the Chief Constable or Deputy Chief Constable could in general grant an authorisation for intrusive surveillance of legal consultations; save in cases of urgency, such authorisation would not take effect unless and until it was approved by a Surveillance Commissioner; even in urgent cases the ordinary Surveillance Commissioners retained the power to quash any order retrospectively and order the destruction of any relevant records; the regime was overseen by the Chief Surveillance Officer, who was independent of the PSNI and had to have held high judicial office; the regime was subject to further judicial oversight in the form of the Investigatory Powers Tribunal, which had jurisdiction to hear complaints by any person regarding the operation of the regime and had power to order appropriate relief; and finally, the Revised Code required that knowledge of matters subject to legal privilege be kept separate from law enforcement investigations or criminal prosecutions. b. The Court ’ s assessment α. The existence of an interference 115. Insofar as the applicant ’ s complaints concern the regime for conducting covert surveillance of consultations between detainees and their legal advisors, the Government have accepted that he can claim to be a victim of the alleged violation. 116. In this regard, it is now well-established that an individual may under certain conditions claim to be the victim of a violation occasioned by the mere existence of legislation permitting secret measures without having to demonstrate that such measures were in fact applied to him ( Klass and Others v. Germany, 6 September 1978, § 34, Series A no. 28). 117. Consequently, the Court will proceed on the basis that there has been an “ interference ”, within the meaning of Article 8 § 2 of the Convention, with the applicant ’ s right to respect for his private life. β. Was the interference justified? 118. In order to be justified under Article 8 § 2 of the Convention, the interference must be “ in accordance with the law ”, in pursuit of a legitimate aim, and “ necessary in a democratic society ”. 119. In respect of Part I of RIPA the Court considered that the interception regime pursued the legitimate aims of the protection of national security and the prevention of disorder and crime ( Kennedy v. the United Kingdom, no. 26839/05, § 155, 18 May 2010). The Court considers that the surveillance regime under Part II of RIPA pursues the same legitimate aims and this has not been disputed by the parties. It therefore falls to the Court to consider the remaining two questions: was the regime “ in accordance with the law ”, and was it “ necessary ” to achieve the legitimate aim pursued? 120. The requirement that any interference must be “in accordance with the law” under Article 8 § 2 will only be met when three conditions are satisfied: the impugned measure must have some basis in domestic law; the domestic law must be compatible with the rule of law and accessible to the person concerned; and the person concerned must be able to foresee the consequences of the domestic law for him (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000 ‑ V, Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008, and Iordachi and Others v. Moldova, no. 25198/02, § 37, 10 February 2009 ). 121. In the present case it is not in dispute that the surveillance regime had a basis in domestic law, namely RIPA and the Revised Code of Practice. Moreover, both RIPA and the Revised Code were public documents – like the Interception of Communications Code of Practice, the Revised Code is available on the internet. This being so, the Court accepts that the relevant domestic law was adequately accessible for the purposes of Article 8 of the Convention. 122. In the special context of secret surveillance measures, the Court has found that “foreseeability” requires that domestic law be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see, for example, the admissibility decision in Weber and Saravia v. Germany (dec.), no. 54934/00, § 93, ECHR 2006 ‑ XI). This is very similar to – and at times considered together with – the test for deciding whether an interference is “necessary in a democratic society” in pursuit of a legitimate aim; namely, whether the minimum safeguards set out in statute law in order to avoid abuses of power are adequate (see Klass and Others v. Germany, cited above, § 50; and Weber and Saravia v. Germany, cited above, § 95). 123. In Valenzuela Contreras v. Spain, cited above, § 59, an interception - of - communications case, the Court set the standard high, finding that the relevant legislation was not adequately foreseeable because neither the Constitution nor the Code of Criminal Procedure included “the conditions regarding the definition of the categories of people liable to have their telephones tapped by judicial order, the nature of the offences which may give rise to such an order, a limit on the duration of telephone tapping, the procedure for drawing up the summary reports containing intercepted conversations and the use and destruction of the recordings made. ” 124. Similarly, in considering whether an interception of communications was “necessary in a democratic society, in Weber and Saravia v. Germany, cited above, § 95 the Court stated: “ In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed (see, inter alia, Huvig, cited above, p. 56, § 34; Amann, cited above, § 76; Valenzuela Contreras, cited above, pp. 1924 ‑ 25, § 46; and Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003).” 125. Consequently, in Kennedy v. the United Kingdom, cited above, § 155 the Court examined in some detail the provisions of both RIPA and the Interception of Communications Code of Practice insofar as they concerned the definition of the categories of people liable to have their telephones tapped by judicial order; the nature of the offences which might give rise to such an order; a limit on the duration of telephone tapping; the provisions on duration, renewal and cancellation of intercept warrants; the procedure for examining, using and storing the data; the general safeguards which applied to the processing and communication of intercept material; the destruction of intercept material; the keeping of records of intercept warrants; and the supervision of the RIPA regime. 126. However, the Government have argued that in its case-law the Court has distinguished between the minimum safeguards required in interception-of- communication cases and those required in other surveillance cases. As the present case concerns covert surveillance and not the interception of communications, so the Government submitted, the relevant test should be less strict; namely, whether the manner of the exercise of the authorities ’ discretionary power to conduct surveillance of legal consultations was indicated in the law with sufficient clarity to give the individual adequate protection against arbitrary interference. 127. It is true that the Court has generally only applied the strict criteria in Valenzuela-Contreras in the context of interception of communication cases. However, it has suggested that the precision required by the legislation will depend on all the circumstances of the case and, in particular, the level of interference with the individual ’ s rights under Article 8 of the Convention. 128. In Bykov v. Russia [GC], no. 4378/02, § 78, 10 March 2009, a case which concerned the recording of a private conversation by way of a radio transmitting device, the Court made it clear that the degree of precision required of the law would depend upon the particular subject-matter of the case. It held that in terms of the nature and degree of the intrusion involved the recording of the conversation in that case was “virtually identical” to telephone tapping and, this being so, it should assess the relevant legislation using the same principles as applied to the interception of communications. Nevertheless, although it cited Valenzuela-Contreras, it defined the relevant test as being whether the law was sufficiently clear to give citizens an adequate indication of the circumstances in which and the conditions on which public authorities were empowered to resort to a secret interference with the right to respect for private life and correspondence. It did not refer to the stricter requirements set out in that judgment, although it is arguable that it was not necessary on the facts of that case as the legal discretion of the authorities to order the interception had not been subject to any conditions and the scope and manner of its exercise had not been defined. 129. In Uzun v. Germany, no. 35623/05, § 66, ECHR 2010 (extracts) the Court accepted that the monitoring of a car ’ s movements by GPS interfered with the applicant ’ s Article 8 rights. However, it distinguished this kind of surveillance from other methods of visual or acoustic surveillance which were generally more susceptible of interfering with Article 8 rights because they disclosed more information on a person ’ s conduct, opinions or feelings. Therefore, the Court indicated that, while it would not be barred from drawing inspiration from the principles set up and applied in the specific context of surveillance of telecommunications, those principles would not be directly applicable in a case concerning surveillance of movements in public places via GPS because such a measure “must be considered to interfere less with the private life of the person concerned than the interception of his or her telephone conversations”. Instead, the Court applied the more general principles on adequate protection against arbitrary interference with Article 8 rights (see, for example, Weber and Saravia, cited above, § 94, and the test applied in Bykov, set out at paragraph 128 above ). 130. The Court has not, therefore, excluded the application of the principles developed in the context of interception cases in covert- surveillance cases; rather, it has suggested that the decisive factor will be the level of interference with an individual ’ s right to respect for his or her private life and not the technical definition of that interference. 131. The present case concerns the surveillance of legal consultations taking place in a police station, which the Court considers to be analogous to the interception of a telephone call between a lawyer and client. The Court has recognised that, while Article 8 protects the confidentiality of all correspondence between individuals, it will afford “strengthened protection” to exchanges between lawyers and their clients, as lawyers would be unable to defend their clients if they were unable to guarantee that their exchanges would remain confidential ( Michaud v. France, no. 12323/11, § 118, ECHR 2012). The Court therefore considers that the surveillance of a legal consultation constitutes an extremely high degree of intrusion into a person ’ s right to respect for his or her private life and correspondence; higher than the degree of intrusion in Uzun and even in Bykov. Consequently, in such cases it will expect the same safeguards to be in place to protect individuals from arbitrary interference with their Article 8 rights as it has required in cases concerning the interception of communications, at least insofar as those principles can be applied to the form of surveillance in question. 132. The Court has emphasised that although sufficient detail should be provided of the nature of the offences in question, the condition of foreseeability does not require States to set out exhaustively by name the specific offences which may give rise to interception (see, for example, Kennedy v. the United Kingdom, cited above, § 159). In Part II of RIPA, section 32 provides that intrusive surveillance can take place where the Secretary of State or senior authorising officer believes it is necessary in the interests of national security, for the purposes of preventing or detecting serious crime, or in the interests of the economic well-being of the United Kingdom. In this respect it is almost identical to section 5 in Part I of RIPA. Paragraph 4.12 of the Revised Code further clarifies that where the surveillance is likely to result in the acquisition of knowledge of matters subject to legal privilege, it is subject to an enhanced authorisation regime and the circumstances in section 32 will arise only in a very restricted range of cases, such as where there is a threat to life or limb, or to national security, and the surveillance is reasonably regarded as likely to yield intelligence necessary to counter that threat see paragraph 75 above). 133. In Kennedy, the Court accepted that the reference to national security and serious crime in section 5, together with the interpretative clarifications in RIPA, gave citizens an adequate indication as to the circumstances in which and the conditions on which public authorities were empowered to resort to interception. As noted in Kennedy, though the term “national security” is not defined in RIPA, it is frequently employed in national and international legislation and constitutes one of the legitimate aims to which Article 8 § 2 itself refers. The terms “serious crime” and “detecting” are defined in the interpretive provisions of RIPA (see paragraphs 57 and 58 above), which apply to both Part I and Part II. In fact, the only discernible difference between the authorisation of the interception of communications provided for in Part I and the authorisation of intrusive surveillance in Part II is that under Part I authorisation is given by the Secretary of State whereas under Part II it may be given by a senior authorising officer (see paragraph 49 above). However, in view of the fact that authorisation by a senior authorising officer generally only takes effect when it has been approved by the Surveillance Commissioner, an independent officer who must have held high judicial office (see paragraph 76 above), the Court does not consider that this fact by itself merits a departure from its conclusions in Kennedy. Consequently, the Court considers that, having regard to the provisions of RIPA, the nature of the offences which may give rise to intrusive surveillance is sufficiently clear. 134. RIPA does not provide any limitation on the persons who may be subjected to intrusive surveillance. Indeed, it is clear from section 27(3) that the conduct that may be authorised under Part II includes conduct outside the United Kingdom. However, as indicated in paragraphs 48 – 49 above, the RIPA regime does set out the relevant circumstances which can give rise to intrusive surveillance, which in turn provides guidance as to the categories of person likely in practice to be subject to such surveillance (see also Kennedy, cited above, § 160). As already noted, those circumstances are further restricted where the surveillance is intended to result in the acquisition of knowledge of matters subject to legal privilege (see paragraph 75 above). 135. In Kennedy, the Court noted that the warrant authorising interception specified the person or premises in respect of which it had been ordered. Although intrusive surveillance is not usually authorised by virtue of a warrant, pursuant to paragraph 6.19 of the Revised Code the application for authorisation must set out the nature of the surveillance; the residential premises or private vehicle in relation to which the surveillance will take place, where known; the identities, where known, of those to be the subject of the surveillance; an explanation of the information which it is desired to obtain as a result of the surveillance; details of any potential collateral intrusion and why that intrusion is justified; details of any confidential information likely to be obtained as a consequence of the surveillance; the reasons why the surveillance is considered proportionate to what it seeks to achieve; and a record of whether authorisation was given and refused, by whom, and the time and date when this happened (see paragraph 48 above). The senior authorising officer may only grant authorisation if he considers it necessary and proportionate, and, unless it is an urgent case, this decision is subject to further scrutiny by a Surveillance Commissioner before the authorisation takes effect (see paragraph 56 above). 136. Bearing in mind the fact that intrusive surveillance under Part II of RIPA concerns the covert surveillance of anything taking place on residential premises or in private vehicles by a person or listening device, the Court accepts that it will not necessarily be possible to know in advance either on what premises the surveillance will take place or what individuals will be affected by it. However, Part II requires the application to set out in full the information that is known, and the proportionality of the measure will subsequently be scrutinised at two separate levels (by the senior authorising officer and by the Surveillance Commissioner). In the circumstances, the Court considers that no further clarification of the categories of persons liable to be subject to secret surveillance can reasonably be required. 137. With regard to the duration of intrusive surveillance, unless renewed a written authorisation will cease to have effect after three months from the time it took effect (see paragraph 66 above). The senior authorising officer or designated deputy may grant a renewal for a period of three months if it is considered necessary for the authorisation to continue for the purpose for which it was issued; however, except in urgent cases the authorisation will only take effect once it has been approved by a Surveillance Commissioner (see paragraph 67 above). Applications for renewal must record whether it is the first renewal or every occasion on which the authorisation was previously renewed; any significant changes to the information contained in the original application; the reason why it is necessary to continue with intrusive surveillance; the content and value to the investigation or operation of the product so far obtained by the authorisation; and the results of any reviews of the investigation or operation. Furthermore, regular reviews of all authorisations must be undertaken and the senior authorising officer who granted or last renewed an authorisation must cancel it if he or she is satisfied that it no longer meets the criteria upon which it was authorised (see paragraph 68 above). The Court therefore considers that the provisions of Part II of RIPA and the Revised Code which deal with duration, renewal and cancellation are sufficiently clear. 138. In contrast, fewer details concerning the procedures to be followed for examining, using and storing the data obtained, the precautions to be taken when communicating the data to other parties, and the circumstances in which recordings may or must be erased or the tapes destroyed are provided in Part II of RIPA and /or the Revised Code. Although material obtained by directed or intrusive surveillance can normally be used in criminal proceedings and law enforcement investigations, paragraph 4 .23 of the Revised Code makes it clear that material subject to legal privilege which has been deliberately acquired cannot be so used (see paragraph 75 above). Certain other safeguards are included in Chapter 4 of the Revised Code with regard to the retention and dissemination of material subject to legal privilege (see paragraph 75 above). Paragraph 4.25 of the Revised Code provides that where legally privileged material has been acquired and retained, the matter should be reported to the authorising officer by means of a review and to the relevant Commissioner or Inspector during his next inspection. The material should be made available during the inspection if requested. Furthermore, where there is any doubt as to the handling and dissemination of knowledge of matters which may be subject to legal privilege, Paragraph 4.26 of the Revised Code states that advice should be sought from a legal advisor before any further dissemination takes place; the retention or dissemination of legally privileged material should be accompanied by a clear warning that it is subject to legal privilege; it should be safeguarded by taking “reasonable steps” to ensure there is no possibility of it becoming available, or it contents becoming known, to any person whose possession of it might prejudice any criminal or civil proceedings; and finally, any dissemination to an outside body should be notified to the relevant Commissioner or Inspector during his next inspection. 139. These provisions, although containing some significant safeguards to protect the interests of persons affected by the surveillance of legal consultations, are to be contrasted with the more detailed provisions in Part I of RIPA and the Interception of Communications Code of Practice, which the Court approved in Kennedy ( cited above, §§ 4 2 – 49). In particular, in relation to intercepted material there are provisions in Part I and the Code of Practice limiting the number of persons to whom the material is made available and restricting the extent to which it is disclosed and copied; imposing a broad duty on those involved in interception to keep everything in the intercepted material secret; prohibiting disclosure to persons who do not hold the necessary security clearance and to persons who do not “need to know” about the material; criminalising the disclosure of intercept material with an offence punishable by up to five years ’ imprisonment; requiring intercepted material to be stored securely; and requiring that intercepted material be securely destroyed as soon as it is no longer required for any of the authorised purposes. 140. Paragraph 9.3 of the Revised Code does provide that each public authority must ensure that arrangements are in place for the secure handling, storage and destruction of material obtained through directed or intrusive surveillance. In the present case the relevant arrangements are contained in the PSNI Service Procedure on Covert Surveillance of Legal Consultations and the Handling of Legally Privileged Material. The Administrative Court accepted that taking together the 2010 Order, the Revised Code and the PSNI Service Procedure Implementing Code, the arrangements in place for the use, retention and destruction of retained material in the context of legal consultations was compliant with the Article 8 rights of persons in custody. However, the Service Procedure was only implemented on 22 June 2010. It was therefore not in force during the applicant ’ s detention in May 2010. 141. The Court has noted the statement of the Government in their observations that only one intrusive surveillance order had been granted up till then in the three years since the 2010 Order (introducing the Revised Code) had come into force in April 2010 (see paragraphs 11 and 12 above). Nevertheless, in the absence of the “arrangements” anticipated by the covert surveillance regime, the Court, sharing the concerns of Lord Phillips and Lord Neuberger in the House of Lords in this regard (see paragraphs 36 – 37 above) is not satisfied that the provisions in Part II of RIPA and the Revised Code concerning the examination, use and storage of the material obtained, the precautions to be taken when communicating the material to other parties, and the circumstances in which recordings may or must be erased or the material destroyed provide sufficient safeguards for the protection of the material obtained by covert surveillance. 142. Consequently, the Court considers that, to this extent, during the relevant period of the applicant ’ s detention (4 – 6 May 2010 – see paragraphs 18 – 2 0 above), the impugned surveillance measures, insofar as they may have been applied to him, did not meet the requirements of Article 8 § 2 of the Convention as elucidated in the Court ’ s case-law. 143. There has therefore been a breach of Article 8 of the Convention. B. Consultations between a detainee who is a “vulnerable person” and an appropriate adult 1. Admissibility 144. The Court is satisfied that this complaint raises complex issues of fact and law, such that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits a. The parties ’ submissions α. The applicant 145. The applicant contended that the regime covering covert surveillance between a detainee who was a “vulnerable person” within the meaning of the Code of Practice and an “ appropriate adult ” (see paragraph 13 above) was not “ in accordance with the law ” as required by paragraph 2 of Article 8 of the Convention. In particular, he submitted that even though these consultations were not protected by legal professional privilege, in view of the vulnerability of the detainee they should be as frank as possible. As such, they were analogous to consultations with legal and medical advisors and their covert surveillance should also have been treated as intrusive – rather than directed – surveillance. 146. On account of being treated as directed surveillance, the present regime allowed for surveillance where it was necessary for one of six purposes set out in section 28(3) of RIPA, including for the purpose of assessing any tax, duty, or levy, and the authorisation was proportionate to what was sought to be achieved; the authorisation could be made by a large number of public authorities; the authorisation did not have to be made by officers at a very senior level within those authorities (a Superintendent within the PSNI); and there was no requirement for prior or subsequent supervision or scrutiny of the individual authorisation by a Surveillance Commissioner or any other independent person or body. 147. The applicant further argued that section 28(6) identified a broad range of circumstances in which covert surveillance of consultations with an appropriate adult could take place, and those circumstances were ill-defined in the legislation; the statutory scheme entitled an extensive number of public authorities to engage in such surveillance and therefore reduced the level of foreseeability in terms of an individual being able to regulate their conduct; the number of individuals within those public authorities who could authorise the use of directed surveillance was not narrowly circumscribed; there were no meaningful limitations on the circumstances in which such material could be deployed; and there was a significant absence of any limits in relation to the retention, storage, transmission, dissemination and destruction of such material. 148. The applicant also submitted that the aims identified under section 28(3) of RIPA were not “legitimate”; this was particularly the case in respect of the aim of furthering the collection of taxes, levies and other duties. 149. Finally, and in any case, the applicant contended that the regime in respect of the covert surveillance of the detainee ’ s consultation with an appropriate adult did not satisfy the test of “necessity” in Article 8 § 2 of the Convention. In particular, there was no reason why the authorisation of such surveillance could not be carried out by an independent person with a judicial background. Β The Government 150. The Government accepted that the applicant could claim to be a victim of an alleged violation of Article 8 of the Convention in relation to his consultations with his appropriate adult from 4 May 2010 to 8 May 2010 ( consultations with the appropriate adult were not affected by the court ’ s direction on 6 May 2010 that the applicant ’ s consultations with his solicitor and medical advisor should not be subject to surveillance ). 151. The Government argued that the surveillance of consultations between a detainee and an appropriate adult pursued a legitimate aim. The applicant had only sought an assurance from the PSNI that his consultations would not be subject to covert surveillance. He could therefore only complain about potential surveillance by the PSNI and that body was not permitted to conduct such surveillance to further the collection of taxes, levies or other duties. 152. Furthermore, the Government submitted that the interference with the applicant ’ s Article 8 rights was similarly justified. There was no close analogy between the meetings with an appropriate adult and consultations with doctors or solicitors, the latter two being subject to legal privilege. This was the reason why consultations with doctors and solicitors were brought within the intrusive surveillance regime and made subject to a test of exceptionality. Appropriate adults, however, were not lawyers and their function was not to provide legal advice or to assist in the preparation of a criminal defence. 153. In any case, the Government argued that the directed surveillance regime contained adequate safeguards against abuse: the PSNI ’ s use of directed surveillance powers was subject to oversight by the Chief Surveillance Commissioner; any individual could complain to the IPT if he was concerned that he might have been subject to directed surveillance and the IPT had the power to grant appropriate relief if any such complaint was found to have substance; and, if criminal proceedings followed, under the court ’ s abuse of process jurisdiction any relevant use of directed surveillance would be subject to further control by the trial judge, both in relation to admissibility of material obtained thereby and in the event of any allegation of abuse or unlawfulness. b. The Court ’ s assessment α. The existence of an interference 154. Insofar as the applicant complains about the regime for conducting covert surveillance of consultations between detainees and their appropriate adults, the Government have accepted that he can claim to be a victim of the alleged violation. 155. For the reasons set out in paragraphs 115 – 117 above, the Court would agree that there has been an “ interference ”, within the meaning of Article 8 § 2 of the Convention, with the applicant ’ s right to respect for his private life. β. Was the interference justified? 156. The Court has already noted that in order to be justified under Article 8 § 2 of the Convention the interference must be “ in accordance with the law ”, in pursuit of a legitimate aim, and “ necessary ” in a democratic society. 157. As with the regime for surveillance of lawyer/client consultations, the Court considers that the regime in question pursues the legitimate aims of protection of national security and the prevention of disorder and crime (see paragraph 119 above). Furthermore, for the reasons set out at paragraph 121 above, the Court finds that the regime had a basis in domestic law, namely Part II of RIPA and the Revised Code of Practice, and that that law was sufficiently accessible. It therefore falls to the Court to decide if the law was adequately foreseeable and whether the interference was “necessary in a democratic society”. As the lawfulness of the interference is closely related to the question of its “necessity”, the Court will jointly address the foreseeability and the “ necessity ” requirements (see also Kennedy, cited above, § 155). 158. The Court has indicated at paragraph 130 above that the subject-matter of the surveillance and the degree of intrusion will determine the degree of precision with which the law must indicate the circumstances in which and the conditions on which the public authorities are entitled to resort to covert measures. The surveillance of consultations between a vulnerable detainee and an appropriate adult, appointed to assist him or her following an arrest, undoubtedly constitutes a significant degree of intrusion. As such, the present case is distinguishable from that of Uzun, cited above, which concerned the monitoring of a car ’ s movements by GPS and, as a consequence, the collection and storage of data determining the applicant ’ s whereabouts and movements in the public sphere. 159. That being said, the surveillance was not taking place in a private place, such as a private residence or vehicle. Rather, it was being conducted in a police station. Moreover, unlike legal consultations, consultations with an appropriate adult are not subject to legal privilege and do not attract the “strengthened protection” accorded to consultations with lawyers or medical personnel. The detainee would not, therefore, have the same expectation of privacy that he or she would have during a legal consultation. Consequently, the Court does not consider it appropriate to apply the strict standard set down in Valenzuela-Contreras and will instead focus on the more general question of whether the legislation adequately protected detainees against arbitrary interference with their Article 8 rights, and whether it was sufficiently clear in its terms to give individuals adequate indication as to the circumstances in which and the conditions on which public authorities were entitled to resort to such covert measures ( Bykov, cited above, § 76). 160. As it is classified as directed rather than intrusive surveillance, the surveillance of consultations with appropriate adults is permissible in a wider range of circumstances than the surveillance of legal consultations (see paragraph 44 above). In Part II of RIPA, section 28 provides that directed surveillance can take place where the authorising officer (in this case a PSNI officer of the rank of Superintendant or above) believes it is necessary in the interests of national security, for the purposes of preventing or detecting serious crime, in the interests of the economic well-being of the United Kingdom, in the interests of public safety, for the purposes of protecting public health, for the purposes of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department, and for any other purpose specified for the purposes of this subsection by an order of the Secretary of State. Nevertheless, the differences are not so great as they might first appear. The PSNI could not authorise the surveillance of a consultation with an appropriate adult for the purposes of assessing or collecting any tax or levy, and the Secretary of State has not specified any other purpose by way of an order. Consequently, consultations with an appropriate adult can only be subject to surveillance on two additional grounds: the interests of public safety, and protecting public health. Like “national security”, both terms are frequently employed in national and international legislation and constitute two of the legitimate aims to which Article 8 § 2 refers. Consequently, the Court considers that, having regard to the provisions of RIPA, the nature of the offences which may give rise to intrusive surveillance is sufficiently clear. 161. As with intrusive surveillance, RIPA does not provide any limitation on the persons who may be subjected to directed surveillance. However, paragraph 5.8 of the Revised Code, which sets out the information to be included in an application for directed surveillance, is drafted in identical terms to paragraph 6.19, which concerns intrusive surveillance (see paragraph 41 above), and, similarly, the authorising officer may only authorise directed surveillance if he considers it necessary and proportionate. It is true that fewer safeguards exist than in respect of the surveillance of legal consultations. First, the surveillance is not subject to the enhanced authorisation regime which applies to surveillance intended to result in the obtaining of information subject to legal privilege. Secondly, surveillance carried out by the PSNI may be authorised by a police officer at the level of Superintendent or above, whereas intrusive surveillance may only be authorised by a senior authorising officer, namely the Chief Constable of the PSNI or the Secretary of State. Thirdly, authorisation does not have to be approved by a Surveillance Commissioner. However, while the Court believes these safeguards to be important in the context of intrusive surveillance, particularly that of legal consultations, in the context of surveillance of consultations with appropriate adults the Court considers that no further clarification of the categories of persons liable to be subject to secret surveillance can reasonably be required. 162. With regard to additional safeguards, the Court notes that authorisations for directed surveillance must be regularly reviewed to assess the need for the surveillance to continue (see paragraph 62 above). During a review, the authorising officer who granted or last renewed the authorisation may amend specific aspects of it. He must cancel the authorisation if satisfied that it no longer meets the criteria on which it was authorised. As soon as the decision is taken that it be discontinued, the instruction must be given to stop all surveillance of the subject and the date of the cancellation should be directly recorded. 163. In any case, the written authorisation will cease to have effect ( unless renewed or cancelled) at the end of a period of three months beginning with the time it took effect (see paragraph 63 above). Written renewals may only be granted for three months at a time, and in order to grant them the authorising officer must be satisfied that it is necessary for the authorisation to continue for the purposes for which it was given (see paragraph 64 above). All applications for renewal should record whether it is the first renewal or every occasion a renewal was previously authorised; any significant changes to the information in the initial application; the reasons why the authoristion should continue; the content and value to the investigation or operation of the information so far obtained; and the results of regular reviews of the investigation or operation (see paragraph 65 above). 164. Detailed records pertaining to all authorisations must be centrally retrievable within each public authority and be retained for at least three years from the end of each authorisation (see paragraph 73 above). Moreover, it is the role of the surveillance commissioners to keep under review the exercise and performance of the powers and duties conferred by Part II of the Act. In doing so, they have the power to quash authorisations and order the destruction of any records relating to information obtained by authorised conduct (see paragraph 78 above). 165. Other than that which is subject to legal professional privilege, information obtained by secret surveillance may be used in evidence in criminal proceedings. However, the admissibility of such evidence would be subject to the control of the trial judge. In certain circumstances it would also be open to the trial judge to stay a prosecution for abuse of process (see paragraph 153 above). 166. Finally, any citizen who believes that they have wrongfully been subject to surveillance may bring a claim to the IPT and, save for vexatious or frivolous claims, the latter tribunal must determine any such claim. The IPT has the power to award compensation and make such orders as it thinks fit, including the quashing or cancelling of any order and the destruction of any records (see paragraph 79 above). 167. The foregoing considerations are sufficient to enable the Court to conclude that the provisions concerning directed surveillance, insofar as they related to the possible surveillance of consultations between detainees and appropriate adults, were accompanied by adequate safeguards against abuse. 168. Accordingly, no violation of Article 8 of the Convention can be found under that head. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 169. The applicant complained of a violation of 6 of the Convention, which provides as relevant: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law .... ... ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... ... ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” 170. In particular, he complained that his ability to communicate effectively with a solicitor in private was damaged in breach of Article 6 § 3(c) of the Convention and that his ability to communicate with an appropriate adult was compromised in breach of Article 6 generally. 171. Although the applicant was charged with the offence of withholding information, he did not stand trial for this or any other offence. Consequently, he cannot complain that any “restriction” imposed on him by virtue of the possibility of covert surveillance deprived him of a fair hearing in breach of Article 6. 172. Furthermore, even if the possibility of covert surveillance of his legal consultations could give rise to an issue under Article 6 § 3(c) of the Convention, the Court recalls that on 6 June 2010 the Administrative Court ordered that there should be no surveillance of the applicant ’ s consultations with his lawyer or doctor pending the outcome of the judicial review proceedings. Consequently, the applicant would have had ample opportunity to consult with both his legal and medical advisors safe in the knowledge that those consultations would not be subject to covert surveillance. 173. In light of the above, the Court considers that the applicant ’ s complaints under Article 6 of the Convention are manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 174. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 175. The applicant made no claim for pecuniary damage. However, he claimed six thousand euros (EUR 6,000 ) in respect of non-pecuniary damage. In particular, he argued that as a vulnerable person with a history of drug and alcohol abuse, anxiety and depression the concern that his legal consultations might be subject to covert surveillance caused him significant distress. 176. The Government argued that a declaration of a breach would be sufficient just satisfaction. In particular, they argued that there was no evidence that the applicant had experienced any suffering or distress related to the possibility that his legal consultations might have been subject to covert surveillance. 177. The Court agrees that the applicant has submitted no evidence to substantiate his claim that the possibility that his legal consultations were subject to covert surveillance caused him any real suffering or distress. Nevertheless, the applicant was undoubtedly a vulnerable young man at the time of his arrest and the Court is therefore prepared to accept that the possibility of not being able to speak freely with his solicitor was capable of having caused him some anguish. However, the possibility of covert surveillance only existed from 4 May 2010 to 6 May 2010, on which date the Administrative Court ordered that his legal consultations should not be subject to surveillance. 178. The Court therefore awards the applicant EUR 1,500 in respect of non-pecuniary damage. B. Costs and expenses 179. The applicant also claimed GBP 26,126.08 for the costs and expenses incurred before the Court. 180. The Government argued that that sum was excessive. 181. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only insofar as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 15,00 0 covering costs under all for the proceedings before the Court. C. Default interest 182. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | This case was considered from the standpoint of the principles developed by the Court in the area of interception of lawyer-client telephone calls, which call for stringent safeguards. The Court found that those principles should be applied to the covert surveillance of lawyer-client consultations in a police station. In the present case, the Court held that there had been a violation of Article 8 of the Convention as concerned the covert surveillance of legal consultations. It noted in particular that guidelines arranging for the secure handling, storage and destruction of material obtained through such covert surveillance had been implemented since 22 June 2010. However, at the time of the applicant’s detention in May 2010, those guidelines had not yet been in force. The Court was not therefore satisfied that the relevant domestic law provisions in place at the time had provided sufficient safeguards for the protection of the applicant’s consultations with his lawyer obtained by covert surveillance. The Court further held that there had been no violation of Article 8 as concerned the covert surveillance of consultations between detainees and their “appropriate adults”, finding in particular that they were not subject to legal privilege and therefore a detainee would not have the same expectation of privacy as for a legal consultation. Furthermore, the Court was satisfied that the relevant domestic provisions, insofar as they related to the possible surveillance of consultations between detainees and “appropriate adults”, were accompanied by adequate safeguards against abuse. |
738 | Noise pollution | THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 15. The applicant complained that the nuisance caused by the heavy traffic in his street amounted to a violation of his right to respect for his private life and home as guaranteed by Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 16. The Government contested that argument. A. Admissibility 17. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 18. The applicant submitted that the noise, vibration, pollution and odour caused by the heavy traffic nearby rendered his home virtually uninhabitable and that the Hungarian authorities'measures to remedy the situation had been insufficient and/or inadequate. 19. The Government argued that the environmental problems suffered by the applicant had arisen essentially due to a toll introduced by a private motorway company and the State had responded with various measures to protect the inhabitants of Alsónémedi from the level of environmental harm proscribed by the Court's case-law under Article 8, thus complying with its positive obligations in this field. 20. They submitted in particular that the operator of the motorway in question had collected toll charges as of 1 January 1997. Initially, the charges had been so high that they had deterred traffic from using the motorway and given rise to increased traffic through the neighbouring villages. Upon protests from the local inhabitants, the toll charges had been slightly lowered. Frequent user and fleet discounts had been granted which, however, had not been attractive enough to reduce toll evasion and the resultant noise and environmental pollution suffered by the neighbouring villages. Following a partial governmental buyout of the motorway in 2002, a sticker system had been introduced entailing a substantial reduction of the toll charges. A State-owned company had then been commissioned to enhance safety on the impugned road sections and reduce the environmental burden on the inhabitants. The measures taken by this agency are outlined in paragraph 7 above. 21. The Court recalls that Article 8 of the Convention protects the individual's right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area within reasonable limits. Breaches of the right to respect of the home are not confined to concrete breaches, such as unauthorised entry into a person's home, but may also include those that are diffuse, such as noise, emissions, smells or other similar forms of interference. A serious breach may result in the breach of a person's right to respect for his home if it prevents him from enjoying the amenities of his home ( cf. Moreno Gómez v. Spain, no. 4143/02, § 53, ECHR 2004 ‑ X). Moreover, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it may involve the authorities'adopting measures designed to secure respect for private life and home even in the sphere of the relations of individuals between themselves (see Moreno Gómez, cited above, § 55). 22. In the instant case, the Court notes the applicant's submission that, from 1997 onwards, the noise, vibration, pollution and odour caused by the heavy traffic nearby had made his property almost uninhabitable. It also observes that the Government did not dispute in essence that the situation had indeed been problematic after the introduction of the toll on the motorway outside Alsónémedi – although they argued that the measures implemented had alleviated the burden on the applicant to such an extent that the adverse environmental effects had been reduced and did not attain the minimum level of harm proscribed by Article 8 in this field. The Court finds noteworthy that, from 1998 onwards, the authorities constructed three bypass roads, introduced a night speed limit of 40 km/h and provided two adjacent intersections with traffic lights. In 2001 further measures were implemented, namely road signs prohibiting the access of heavy vehicles and re-orientating traffic were installed (see paragraph 7 above). 23. The Court considers that the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention when it comes to the determination of regulatory and other measures intended to protect Article 8 rights. This consideration also holds true in situations, which do not concern direct interference by public authorities with the right to respect for the home but involve those authorities'failure to take action to put a stop to third-party breaches of the right relied on by the applicant (cf. Moreno Gómez, cited above, § 57 ). In the present case the State was called on to balance between the interests of road-users and those of the inhabitants of the surrounding areas. The Court recognises the complexity of the State's tasks in handling infrastructural issues, such as the present one, where measures requiring considerable time and resources may be necessary. It observes nevertheless that the measures which were taken by the authorities consistently proved to be insufficient, as a result of which the applicant was exposed to excessive noise disturbance over a substantial period of time. The Court finds that this situation created a disproportionate individual burden for the applicant. In that respect, the Court observes that, on the basis of the expert opinion of Budapest Technical University, the domestic courts concluded that the vibration or the noise caused by the traffic was not substantial enough to cause damage to the applicant's house, but the noise exceeded the statutory level (see paragraph 13 above). The Court has already held that noise pressure significantly above statutory levels, unresponded to by appropriate State measures, may as such amount to a violation of Article 8 of the Convention ( cf. Oluić v. Croatia, no. 61260/08, § § 48 to 66, 20 May 2010; Moreno Gómez v. Spain, cited above, §§ 57 to 63 ). In the present case, it notes that, despite the State's efforts to slow down and reorganise traffic in the neighbourhood, a situation involving substantial traffic noise in the applicant's street prevailed at least until and including May 2003 when two measuring sessions established noise values respectively 15% and 12% above the statutory ones (see paragraph 11 above) (see, a contrario, Fägerskiöld v. Sweden (dec.), no. 37664/04, ECHR 2008– ... (extracts)). 24. In these circumstances, the Court considers that there existed a direct and serious nuisance which affected the street in which the applicant lives and prevented him from enjoying his home in the material period. It finds that the respondent State has failed to discharge its positive obligation to guarantee the applicant's right to respect for his home and private life. Accordingly, there has been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 25. The applicant also complained that the length of the proceedings which he brought in this matter was incompatible with the “reasonable time” requirement of Article 6 § 1. The Government contested that argument. 26. The period to be taken into consideration began on 23 February 1999 and ended on 15 November 2005. It thus lasted almost six years and nine months for two levels of jurisdiction. In view of such lengthy proceedings, this complaint must be declared admissible. 27. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court finds that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 29. In respect of non-pecuniary damage, the applicant claimed 20,000 euros (EUR) for the violation of Article 8 of the Convention and EUR 8,000 for the violation of Article 6. 30. The Government contested these claims. 31. Deciding on an equitable basis, the Court awards the applicant EUR 6, 0 00 in respect of non-pecuniary damage under all heads. B. Costs and expenses 32. The applicant made no costs claim. C. Default interest 33. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In the applicant’s case, the Hungarian authorities had been called on to strike a balance between the interests of the road-users and of local inhabitants. While recognising the complexity of the authorities’ tasks in handling infrastructure issues potentially involving considerable time and resources, the Court considered that the measures taken by the authorities had consistently proved insufficient, so exposing the applicant to excessive noise disturbance over a substantial period and imposing a disproportionate individual burden on him. Although the vibration or noise caused by the traffic had not been substantial enough to cause damage to the applicant’s house, the noise had, according to the expert measurements, exceeded the statutory level by between 12% and 15%. There had thus existed a direct and serious nuisance which affected the street in which the applicant lived and had prevented him from enjoying his home. The Court therefore held that there had been a violation of Article 8 of the Convention, finding that Hungary had failed to discharge its positive obligation to guarantee the applicant’s right to respect for his home and private life. The Court also held that there had been a violation of Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention on account of the length of the proceedings. |
743 | Soil and water contamination | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine, 26 June 1996 66. The relevant provisions of the Constitution read as follows: Article 16 “To ensure ecological safety and to maintain the ecological balance on the territory of Ukraine, to overcome the consequences of the Chernobyl catastrophe — a catastrophe of global scale, and to preserve the gene pool of the Ukrainian people, is the duty of the State.” Article 50 “Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right ...” B. Law of Ukraine “On Ensuring the Environmental Health of the Public” of 24 February 1994 67. The relevant extracts from the Law provide as follows: Article 15. Requirements as to urban planning and construction, development, manufacture and use of new technologies and means of production “Enterprises, institutions, organisations and citizens shall comply with the requirements of environmental health legislation during ... construction and in urban planning development ... Building and urban development ... should first and foremost aim at creating the most prosperous conditions for life and maintaining and improving the health of citizens.” Article 18. Requirements concerning the domestic drinking water supply and water consumption areas “The Government and local self-government authorities shall provide the residents of cities and other residential areas with drinking water, whose quantity and quality must comply with the requirements of environmental health legislation and [with] national standards ... ... Special health protection zones shall be established for domestic water supply systems and their sources.” C. Law of Ukraine “On Burials and Burial Service” of 10 July 2003 68. According to the relevant provisions of that law the State standards relating to planning and construction of burial vicinities shall include the State construction and environmental standards (Article 5 of the Law). Under Article 8 of the Law the local self-government bodies shall be responsible for allocation of land, construction, operation and administration of the cemeteries. Burial, pursuant to Article 12 of the Law, may be effectuated on the basis of a request lodged with the head of the village council or a relevant burial service. According to Article 23 of the Law, the executive bodies of village, town and city councils shall be responsible for planning and organisation of the territories of the burial vicinities, according to the general construction plans of the relevant residential areas and taking into account town planning, environmental and sanitary and hygiene requirements. D. Law of Ukraine “On Drinking Water and the Drinking Water Supply” of 10 January 2002 69. The Drinking Water and Water Supply Act of 10 January 2002 (see relevant extracts from the Act below) establishes framework regulations for sanitary and hygiene standards of drinking water and water supply. In particular, Sections 27 – 30 of that Act establish obligatory standards for drinking water and its supply, obligatory for compliance by the State authorities. These standards, according to Section 28 of the Act shall be established by the Cabinet of Ministers and shall be monitored by the Chief Sanitary Doctor of Ukraine, administering the State Sanitary and Epidemic Service of Ukraine. The relevant extracts from the Law provide as follows: Article 13. Powers of local self-government bodies concerning drinking water and the drinking water supply “Local self-government bodies shall be authorised: to approve urban development projects and other documents relating to town planning, taking into account the requirements of [this Act]; ... ” Article 22. Rights and duties of consumers of drinking water “Consumers of drinking water shall be entitled: to be provided with drinking water of a quality that complies with national standards ... ” Article 36. Limitations on economic and other activities within health protection zones “ ... It is prohibited to place, construct, operate or reconstruct enterprises, installations and other objects for which full compliance with the requirements of the health protection zones [applicable to] projects, building and reconstruction and other projects cannot be guaranteed. ... Within the second belt of the health protection zone: it is prohibited to place a cemetery ... or other object that [may] create a threat of microbial contamination of water ... ” E. The National Environmental Health Regulations establishing “Environmental Health Requirements Concerning the Construction and Maintenance of Cemeteries in Residential Areas of Ukraine” of 1 July 1999 70. The relevant extracts from the Law provide as follows: 1. General Provisions “ ... 1.2. The National Environmental Health Regulations are statutory and binding on public officials and citizens. ... ” 3. Environmental Health Rules as to the Construction of Cemeteries “3.2. The location of a cemetery and its size shall be envisaged by the general construction plan of a residential area; the allocation of a plot of land for a cemetery, new cemetery construction plans, and the expansion and reconstruction of operating cemeteries are subject to approval by the local offices of the State Environmental Health Inspectorate. ... 3.5. ... [A] health protection zone between a cemetery for traditional burials or a crematorium and residential or public buildings, recreational areas and allotments shall not be less than 300 metres wide. ... [The following] cannot be located within a health protection zone: - residential houses with a household plot, dormitories, hotels, guest houses.” F. The Relevant Domestic Standards Relating to Drinking Water, Construction of Cemeteries and Water Protection Zones 71. According to the Resolution of the Cabinet of Ministers No. 2024 of 18 December 1998 “On the Legal Regime of Sanitary Protection Zones for Water Objects”, it is prohibited to place cemeteries and other objects which create a danger of microbic water pollution within the second belt of water protection zone. 72. According to the Appendix No. 1 to the State Sanitary Norms and Rules on Hygiene of Drinking Water for Human Consumption, approved by the Ministry of Health ( ДСанПіН 2.2.4.-171-10 ) on 12 May 2010, drinking water should not contain any traces of E. coli to be considered safe for human consumption. These regulations replaced the State Sanitary Rules and Norms “ On Placement and maintenance of wells and underground captation of water sources used for decentralised household drinking water supply”, as approved by the Order No. 384 of the Ministry of Health of Ukraine on 23 December 1996. The 1996 State Sanitary Rules and Norms established that the index of E. coli bacteria per 1 cubic dm ( вміст бактерій групи кишкової палички в 1 куб. дм або “ Індекс ВГКП ” ) should not exceed 10. According to that standard a coliphage content, i.e. a bacteriophage that infects E. coli, should equal to “zero”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 73. The applicant complained of a violation of Article 8 of the Convention. In particular, he submitted that the construction of a cemetery near his house had led to the contamination of his supply of drinking water and water used for private gardening purposes, preventing him from making normal use of his home and its amenities, including the soil of his own plot of land, and negatively affecting his and his family ’ s physical and mental health. The text of Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 74. The Government raised no objection as to the admissibility of this complaint. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Applicability of Article 8 1. The parties ’ submissions 75. The Government submitted that there was no evidence of any adverse effects on the applicant ’ s health which had resulted from the construction and use of the cemetery in issue. Nevertheless, they agreed that the applicant could have sustained some suffering as a result of the construction of the cemetery in the land plot adjacent to his house. 76. The applicant maintained his complaints, stating that the continued use of the cemetery had rendered his home virtually uninhabitable and his land unsuitable for use. He submitted that he could not use his plot of land for gardening nor the well on his land for drinking water for fear of being poisoned. The applicant further submitted that he and his family had been disturbed by the burial ceremonies carried out near their house. 2. The Court ’ s assessment 77. As the Court has noted in a number of its judgments, Article 8 has been relied on in various cases in which environmental concerns are raised (see, among many other authorities, Fadeyeva v. Russia, no. 55723/00, § 68, ECHR 2005 ‑ IV ). However, in order to raise an issue under Article 8 the interference about which the applicant complains must directly affect his home, family or private life and must attain a certain minimum level if the complaints are to fall within the scope of Article 8 (see López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303 ‑ C; and Fadeyeva, cited above, § 69-70). Therefore, the first point for decision is whether the environmental pollution of which the applicant complains can be regarded as affecting adversely, to a sufficient extent, the enjoyment of the amenities of his home and the quality of his private and family life (see Ivan Atanasov v. Bulgaria, no. 12853/03, § 66, 2 December 2010 ). In this respect, the Court recalls that water pollution was one of the factors which was found to affect the applicants ’ health and hence their ability to enjoy their home, private and family life in the case of Dubetska and Others v. Ukraine (no. 30499/03, §§ 110 and 113, 10 February 2011). 78. The assessment of the minimum level is relative and depends on all the circumstances of the case, such as, the intensity and duration of the nuisance and its physical or mental effects. The general context of the environment should also be taken into account. The Court recently recalled that there could be no arguable claim under Article 8 if the detriment complained of was negligible when compared to the environmental hazards inherent in life in every modern city (see Hardy and Maile v. the United Kingdom, no. 31965/07, § 188, 14 February 2012 ). 79. As regards health impairment, it is hard to distinguish the effect of environmental hazards from the effects of other relevant factors, such as, age, profession or personal lifestyle. Also, as regards the general context of the environment, there is no doubt that severe water and soil pollution may negatively affect public health in general and worsen the quality of an individual ’ s life, but it may be impossible to quantify its actual effects in each individual case, “ quality of life” itself being a subjective characteristic which does not lend itself to a precise definition (see, mutatis mutandis, Ledyayeva and Others v. Russia, nos. 53157/99, 53247/99, 53695/00 and 56850/00, § 90, 26 October 2006). 80. Taking into consideration the evidentiary difficulties involved, the Court will primarily give regard to the findings of the domestic courts and other competent authorities in establishing the factual circumstances of the case. As a basis for the analysis it may use, for instance, domestic legal provisions determining unsafe levels of pollution and environmental studies commissioned by the authorities. Special attention will be paid by the Court to individual decisions taken by the authorities with respect to an applicant ’ s particular situation, such as an undertaking to revoke a polluter ’ s operating licence or to resettle a resident away from a polluted area. However, the Court cannot rely blindly on the decisions of the domestic authorities, especially when they are obviously inconsistent or contradict each other. In such a situation it has to assess the evidence in its entirety. Further sources of evidence for consideration in addition to the applicant ’ s personal accounts of events, will include, for instance, his medical certificates as well as relevant reports, statements or studies made by private entities (see Dubetska and Others v. Ukraine, § 107, cited above, with further references ). 81. The Court recalls that Article 8 has been found to apply where the dangerous effects of an activity to which the individuals concerned were likely to be exposed established a sufficiently close link with private and family life for the purposes of Article 8 of the Convention (see Hardy and Maile v. the United Kingdom, § 189, cited above ). In that case, the Court recognised that the potential risks to the environment caused by the construction and operation of two liquefied natural gas (“LNG”) terminals established a sufficiently close link with the applicant ’ s private live and home for the purposes of Article 8 and thereby triggered the application of that provision ( see Hardy and Maile v. the United Kingdom, § 192, cited above). 82. As to the present case, the Court accepts that the applicant and his family may have been affected by the water pollution at issue. However, the Court must establish, in the absence of direct evidence of actual damage to the applicant ’ s health, whether the potential risks to the environment caused by the cemetery ’ s location established a close link with the applicant ’ s private life and home sufficient to affect his “quality of life” and to trigger the application of the requirements of Article 8 of the Convention (see paragraphs 78 – 8 1 above). 83. The Court notes that the domestic environmental health and sanitary regulations clearly prohibited placing the cemetery in close proximity to residential buildings and water sources (see paragraphs 6 7 to 72 above). It appears that the nearest boundary of the cemetery is situated 38 metres away from the applicant ’ s house (see paragraph 3 3 above). This cannot be regarded as a minor irregularity but as a rather serious breach of domestic regulations given that the actual distance is just over one tenth of the minimum distance permissible by those rules. Furthermore, the cemetery is a continuous source of possible health hazards and the potential damage caused by such is not easily reversible or preventable. Such environmental dangers have been acknowledged by the authorities on numerous occasions, including, by prohibiting the use of the illegal cemetery for burials and by the offer to resettle the applicant (see paragraphs 20 – 25 and 49 above). It further notes that the domestic authorities established that the construction of a cemetery at the said location placed the applicant at risk of contamination of the soil and of the drinking and irrigation water sources because of emanations from decomposing bodies like ptomaine (see paragraph 10 above). The Court has particular regard to the fact that there was no centralised water supply in the Tatariv village and villagers used their own wells (see paragraph 9 above). It also appears that the high level of E. coli found in the drinking water of the applicant ’ s well was far in excess of permitted levels and may have emanated from the cemetery (see paragraphs 1 2, 1 8 and 3 0 above), although the technical reports came to no definitive or unanimous conclusion as to the true source of E. coli contamination (see paragraph 31 above). In any event, the high level of E. coli, regardless of its origin, coupled with clear and blatant violation of environmental health safety regulations confirmed the existence of environmental risks, in particular, of serious water pollution, to which the applicant was exposed. 84. Under such circumstances, the Court concludes that the construction and use of the cemetery so close to the applicant ’ s house with the consequent impact on the environment and the applicant ’ s “quality of life ” reached the minimum level required by Article 8 and constituted an interference with the applicant ’ s right to respect for his home and private and family life. It also considers that the interference, being potentially harmful, attained a sufficient degree of seriousness to trigger the application of Article 8 of the Convention. C. Compliance with Article 8 1. Submissions by the parties 85. The Government maintained that the cemetery had been built in the interests of the villagers of Tatariv, as there had been absolutely no other place in the mountainous region near the village that could be used for a cemetery. They further stated that while it was true that the cemetery had been built in breach of environmental health laws and regulations as it had lacked the health protection zone required by law, the authorities had done all they could to prohibit burials and to provide the applicant with an opportunity to be re- housed, even though such an obligation to resettle had not existed in law. According to them, he had continuously rejected such proposals. In this respect they supplied letters of 10, 15 and 16 December 2009 from Tarariv Council and the Ivano-Frankivsk Regional State Administration, in which the municipal authorities stated that the applicant was not interested in resettlement (see paragraph 3 4 above). The Government accepted that the fact that the cemetery was placed on the VL plot engaged State ’ s positive obligations under Article 8 of the Convention. 86. The applicant maintained his complaints and submitted that the decision to construct the cemetery in the vicinity of his house had been taken in breach of domestic regulations and that the Ukrainian authorities ’ measures to remedy the situation had been insufficient and inadequate. In particular, he stated that the authorities had done nothing to close the illegal cemetery, had failed to discontinue burials or to redress the situation by providing him with an alternative. The applicant submitted that he did not have anywhere to move to and he did not have enough money to build a new house. He mentioned that, despite his requests, no detailed and specific resettlement proposal had ever been made by the authorities. 2. The Court ’ s assessment 87. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it may involve the authorities ’ adopting measures designed to secure respect for private life and home (see, with further references, Moreno Gómez v. Spain, no. 4143/02, § 55, ECHR 2004 ‑ X ). 88. Environmental pollution may affect individuals ’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health. The Court notes that the allegations of environmental harm in the instant case do not, as such, relate to the State ’ s involvement in industrial pollution ( see, in the context of serious industrial pollution, Dubetska and Others v. Ukraine, § 73, cited above ). However, they concern allegations of health hazards arising from the local authority ’ s decision to locate a cemetery just 38 meters from the applicant ’ s home in breach of domestic regulations plus the State ’ s failure to act in securing compliance with the domestic environmental standards. The allegations also concern the State ’ s failure to regulate the activities of the municipality in line with such standards. The Court ’ s task in such a situation is to assess whether the State took all reasonable measures to secure the protection of the applicant ’ s rights under Article 8 of the Convention. In making such an assessment factors, including compliance with the domestic environmental regulations and judicial decisions, must be analysed in the context of a given case (see, mutatis mutandis, Dubetska and Others v. Ukraine, cited above, § 141 ). In particular, where domestic environmental regulations exist, a breach of Article 8 may be established where there is a failure to comply with such regulations (see Moreno Gómez v. Spain, cited above, §§ 56 and 61). 89. Moreover, the principles applicable to an assessment of the State ’ s responsibility under Article 8 of the Convention in environmental cases are broadly similar, regardless of whether the case is to be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants ’ rights under Article 8 § 1 of the Convention or in terms of an “interference by a public authority” to be justified in accordance with Article 8 § 2. Furthermore, the procedural safeguards available to the applicant under Article 8 may be rendered inoperative and the State may be found liable under the Convention where a judicial decision, prescribing certain conduct to the authorities on environmental issues, is ignored by the authorities or remains unenforced for an important period of time (see, mutatis mutandis, Taşkın and Others v. Turkey, no. 46117/99, §§ 124-25, ECHR 2004 ‑ X). 90. Given that the applicant complains about direct Government responsibility for the placement of the cemetery in close proximity to his home and the pollution flowing therefrom, the Court will consider the case as one of direct interference with the applicant ’ s rights under Article 8 (see paragraph 84 above). 91. As to the assessment of compliance with the requirement of lawfulness under Article 8 of the Convention, combined with the requirements of compliance with the domestic regulations, the Court notes the following: ( i ) Tatariv Council ’ s decision to situate the cemetery on the VL plot was taken in breach of the National Environmental Health Regulations and in particular the 300 metres “health protection zone” requirement (see paragraph 71 and 72 above ). There was no lawfully approved construction plan, in contravention of the Laws of Ukraine “On Burials and Burial Service” (see paragraph 6 8 above) and “On Drinking Water and the Drinking Water Supply ”. In particular, the latter Act in its Sections 27 – 30 established obligatory sanitary and hygiene standards of drinking water and water supply, envisaging no E. coli content in drinking water (see paragraph 72 above); (ii) The unlawfulness of the placement of the cemetery and the non-compliance with health and water protection zones were signalled on numerous occasions by the environmental health authorities and were acknowledged in the decisions of the domestic courts on at least six occasions (see paragraphs 1 2 - 1 4, 1 8, 3 5, 3 7, 4 2, 4 6 and 49 - 5 1 above ); ( iii) The domestic authorities, responsible for the administration and maintenance of the cemetery under the law, failed to respect and to give full effect to the final and binding judgment of 26 December 2003 given by the Verkhovyna Court, confirmed by the appeal court and the Supreme Court, by which Tatariv Council was obliged to close the cemetery (see paragraph 49 above). This judgment remains unenforced to this day (see paragraph 6 1 above) and members of Tatariv Council, on several occasions, have refused to adopt a decision in compliance with that judgment; (iv). The domestic authorities continued to disrespect the domestic environmental regulations as well as the final and binding judicial decisions confirming that they acted illegally and the decision of 26 December 2003 confirming that the cemetery should have been closed. 92. The Court notes that the Government have not disputed that the cemetery was built and used in breach of the domestic regulations (see paragraph 8 5 above). It further appreciates the difficulties and possible costs in tackling environmental concerns associated with water pollution in mountainous regions. At the same time, it notes that the siting and use of the cemetery were illegal in a number of ways: environmental regulations were breached; the conclusions of the environmental authorities were disregarded; final and binding judicial decisions were never enforced and the health and environment dangers inherent in water pollution were not acted upon (see paragraph 91 above ). The Court finds that the interference with the applicant ’ s right to respect for his home and private and family life was not “ in accordance with the law” within the meaning of Article 8 of the Convention. There has consequently been a violation of that provision in the present case. The Court considers, in view of its findings of illegality of the authorities ’ actions, that it is unnecessary to rule on the remaining aspects of the alleged breach of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 93. The applicant complained that the failure of the domestic authorities and private individuals to comply with the final judgment prohibiting the use of the VL plot situated near his house for burial purposes had amounted to a breach of Article 6 § 1 of the Convention. 94. The Government contested that argument. 95. The Court finds that this complaint is linked to those examined above and must therefore likewise be declared admissible. Having regard to the finding relating to Article 8 (see paragraph 9 2 above), the Court considers that it is not necessary to examine the issue separately under Article 6 § 1 (see, mutatis mutandis, W. v. the United Kingdom, 8 July 1987, § 84, Series A no. 121, and Mihailova v. Bulgaria, no. 35978/02, § 107, 12 January 2006). III. OTHER COMPLAINTS 96. The applicant complained under Article 6 § 1 that the proceedings concerning his dispute with Tatariv Council had been unfair and excessively lengthy. 97. In the light of the materials in its possession, the Court finds that the applicant ’ s complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 98. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 99. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 100. The applicant claimed UAH 1,000,000 (EUR 163,125) in respect of non-pecuniary damage. 101. The Government contested this claim. 102. The Court notes that the applicant must have sustained non-pecuniary damage as the result of the violation found. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 6, 0 00 in respect of non-pecuniary damage. B. Costs and expenses 103. The applicant did not submit any claim for costs and expenses. Accordingly, the Court makes no award under this head. C. Default interest 104. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention, finding that the interference with the applicant’s right to respect for his home and private and family life had not been “in accordance with the law” within the meaning of that provision. It noted in particular that the Ukrainian Government had not disputed that the cemetery had been built and used in breach of the domestic regulations. The conclusions of the environmental authorities had also been disregarded. Final and binding judicial decisions ordering in particular to close the cemetery had never been enforced and the health and environment dangers inherent in water pollution had not been acted upon. |
301 | Prevention of terrorism | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The introduction of the police power to stop and search without reasonable suspicion 25. Police officers have the power to stop and search individuals under a range of legislation. For example, section 1 of the Police and Criminal Evidence Act 1984 allows an officer who has reasonable grounds for suspicion to stop and search a person or vehicle to look for stolen or prohibited items. Section 60 of the Criminal Justice and Public Order Act 1994 allows a senior officer to authorise the stop and search of persons and vehicles where there is good reason to believe that to do so would help to prevent incidents involving serious violence or that persons are carrying dangerous instruments or offensive weapons. 26. The police power to stop and search at random where expedient to prevent acts of terrorism was first introduced as a response to the bombing campaign between 1992 and 1994 in and around London. Section 81 of the Criminal Justice and Public Order Act 1994 inserted a new section 13A into the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”) in similar terms to section 44 of the 2000 Act (see paragraph 30 below), but without any requirement that the Secretary of State confirm the authorisation. The Prevention of Terrorism (Additional Powers) Act 1996 created an additional, separate power to stop and search pedestrians, under section 13B of the 1989 Act. The 1996 Act also established for the first time the confirmation procedure involving the Secretary of State. B. Consideration of the need to retain the power to stop and search without reasonable suspicion 27. In 1995 the Government asked Lord Lloyd of Berwick, a House of Lords judge, to undertake an Inquiry into the need for specific counter-terrorism legislation in the United Kingdom following the decrease in terrorism connected to Northern Ireland. The Inquiry included consideration of whether there remained a continuing need for a power equivalent to that in sections 13A and 13B of the 1989 Act. In his Report (Cm 3420, § 10, October 1996), Lord Lloyd noted that between February and August 1996 the police in London had carried out searches of 9,700 drivers and passengers and 270 pedestrians under sections 13A and 13B of the 1989 Act. When considering whether similar powers should be retained in any permanent counter-terrorism legislation that might be enacted, he observed that a decision to give the police a power to stop and search at random was not to be taken lightly. On the other hand there was evidence that a number of terrorists had been intercepted by alert officers on patrol, and in at least one case a potential catastrophe had been averted. He said that there was also reason to believe that terrorists were deterred to some extent by the prospect of police road checks and the consequent risk that they would be intercepted. He commented : “ As to usage, the figures show that the power has been used with great discretion. The requirement for authorisation by a very senior police officer is an important control mechanism. A number of requests have been turned down. That is reassuring. The police are very sensitive to the damage which would be done if there were ever any grounds for suspecting that the power was being used as anything other than a counter-terrorism measure.” In the end Lord Lloyd recommended that powers on the lines of the existing sections 13A and 13B should be retained in permanent legislation. He also recommended that the Secretary of State's confirmation should be required in relation to each provision. Since the Police and Criminal Evidence Act Code A applied the same standards to the terrorism provisions as to other statutory powers to stop and search, he saw no need for additional safeguards. C. The Terrorism Act 2000 28. The 2000 Act was intended to overhaul, modernise and strengthen the law relating to terrorism in the light, inter alia, of Lord Lloyd's Inquiry. “Terrorism” is defined, in section 1, as follows: “(1) In this Act'terrorism'means the use or threat of action where - (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it - (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section - (a)'action'includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d)'the government'means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom. (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.” 29. Sections 41-43 of the 2000 Act, under the sub-heading “Suspected terrorists”, provide for arrest without warrant, the search of premises and the search of persons by a police officer. In each case there must be reasonable suspicion that the person subject to the arrest or search is a terrorist. 30. Sections 44-47, under the sub-heading “Power to stop and search”, are not subject to the requirement of reasonable suspicion. These sections provide for a three stage procedure. The first stage, under section 44, is authorisation : “ 44 (1) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search - (a) the vehicle; (b) the driver of the vehicle; (c) a passenger in the vehicle; (d) anything in or on the vehicle or carried by the driver or a passenger. (2) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search - (a) the pedestrian; (b) anything carried by him. (3) An authorisation under subsection (1) or (2) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism. (4) An authorisation may be given - (a) where the specified area or place is the whole or part of a police area outside Northern Ireland other than one mentioned in paragraph (b) or (c), by a police officer for the area who is of at least the rank of assistant chief constable; (b) where the specified area or place is the whole or part of the metropolitan police district, by a police officer for the district who is of at least the rank of commander of the metropolitan police; (c) where the specified area or place is the whole or part of the City of London, by a police officer for the City who is of at least the rank of commander in the City of London police force; (d) where the specified area or place is the whole or part of Northern Ireland, by a [member of the Police Service of Northern Ireland] who is of at least the rank of assistant chief constable. (5) If an authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.” By section 46(1)-(2), an authorisation takes effect when given and expires when it is expressed to expire, but may not be for longer than 28 days. The existence and contents of section 44 authorisations are not within the public domain. 31. The second stage is confirmation, governed by section 46(3)-(7). The giver of an authorisation must inform the Secretary of State as soon as is reasonably practicable. If the Secretary of State does not confirm the authorisation within 48 hours of the time when it was given, it then ceases to have effect (without invalidating anything done during the 48-hour period). When confirming an authorisation the Secretary of State may substitute an earlier, but not a later, time of expiry. He may cancel an authorisation with effect from a specified time. Where an authorisation is duly renewed, the same confirmation procedure applies. The Secretary of State may not alter the geographical coverage of an authorisation but may withhold his confirmation if he considers the area covered to be too wide. 32. The third stage, under section 45, involves the exercise of the stop and search power by a police constable: “(1) The power conferred by an authorisation under section 44(1) or (2) - (a) may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and (b) may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind. (2) A constable may seize and retain an article which he discovers in the course of a search by virtue of section 44(1) or (2) and which he reasonably suspects is intended to be used in connection with terrorism. (3) A constable exercising the power conferred by an authorisation may not require a person to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves. (4) Where a constable proposes to search a person or vehicle by virtue of section 44(1) or (2) he may detain the person or vehicle for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle is stopped. (5) Where - (a) a vehicle or pedestrian is stopped by virtue of section 44(1) or (2), and (b) the driver of the vehicle or the pedestrian applies for a written statement that the vehicle was stopped, or that he was stopped, by virtue of section 44(1) or (2), the written statement shall be provided. (6) An application under subsection (5) must be made within the period of 12 months beginning with the date on which the vehicle or pedestrian was stopped.” 33. These powers are additional to the other powers conferred on a constable by law (2000 Act, section 114). Section 47 makes it an offence punishable by imprisonment or fine or both to fail to stop when required to do so by a constable, or wilfully to obstruct a constable in the exercise of the power conferred by an authorisation under section 44(1) or (2). 34. Sections 44-47 of the 2000 Act came into force on 19 February 2001. It was disclosed during the domestic proceedings in the present case that successive section 44 authorisations, each covering the whole of the Metropolitan Police district and each for the maximum permissible period (28 days), have been made and confirmed ever since that time. D. The Code of Practice 35. A Code of Practice was issued by the Secretary of State on 1 April 2003 to guide police officers in the exercise of all statutory powers of stop and search. It was required to be readily available at all police stations for consultation by police officers and was a public document. 36. The Code required, inter alia, that such powers be “used fairly, responsibly, with respect to people being searched”. It required that the power under section 44 of the 2000 Act “must not be used to stop and search for reasons unconnected with terrorism” and that the power should be used “to search only for articles which could be used for terrorist purposes”. In paragraphs 1.2 and 1.3, the Code provided: “1.2 The intrusion on the liberty of the person stopped or searched must be brief and detention for the purposes of a search must take place at or near the location of the stop. 1.3 If these fundamental principles are not observed the use of powers to stop and search may be drawn into question. Failure to use the powers in the proper manner reduces their effectiveness. Stop and search can play an important role in the detection and prevention of crime, and using the powers fairly makes them more effective.” Paragraph 3.5 of the Code provided: “ There is no power to require a person to remove any clothing in public other than an outer coat, jacket or gloves except under section 45(3) of the Terrorism Act 2000 (which empowers a constable conducting a search under section 44(1) or 44(2) of that Act to require a person to remove headgear and footwear in public) ... A search in public of a person's clothing which has not been removed must be restricted to superficial examination of outer garments. This does not, however, prevent an officer from placing his or her hand inside the pockets of the outer clothing, or feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search. For the same reasons, subject to the restrictions on the removal of headgear, a person's hair may also be searched in public ... ” Certain steps were required by paragraph 3.8 to be taken before the search: “3.8 Before any search of a detained person or attended vehicle takes place the officer must take reasonable steps to give the person to be searched or in charge of the vehicle the following information: (a) that they are being detained for the purposes of a search; (b) the officer's name (except in the case of enquiries linked to the investigation of terrorism, or otherwise where the officer reasonably believes that giving his or her name might put him or her in danger, in which case a warrant or other identification number shall be given) and the name of the police station to which the officer is attached; (c) the legal search power which is being exercised; and (d) a clear explanation of; (i) the purpose of the search in terms of the article or articles for which there is a power to search; ... (iii) in the case of powers which do not require reasonable suspicion ..., the nature of the power and of any necessary authorisation and the fact that it has been given.” Officers conducting a search were required by paragraph 3.9 to be in uniform. The Code continued, in paragraphs 3.10-3.11: “3.10 Before the search takes place the officer must inform the person (or the owner or person in charge of the vehicle that is to be searched) of his or her entitlement to a copy of the record of the search, including his entitlement to a record of the search if an application is made within 12 months, if it is wholly impracticable to make a record at the time. If a record is not made at the time the person should also be told how a copy can be obtained .... The person should also be given information about police powers to stop and search and the individual's rights in these circumstances. 3.11 If the person to be searched, or in charge of a vehicle to be searched, does not appear to understand what is being said, or there is any doubt about the person's ability to understand English, the officer must take reasonable steps to bring information regarding the person's rights and any relevant provisions of this Code to his or her attention. If the person is deaf or cannot understand English and is accompanied by someone, then the officer must try to establish whether that person can interpret or otherwise help the officer to give the required information.” A record was required to be made at the time or as soon as practicable (paragraph 4.1): “4.1 An officer who has carried out a search in the exercise of any power to which this Code applies, must make a record of it at the time, unless there are exceptional circumstances which would make this wholly impracticable (e.g. in situations involving public disorder or when the officer's presence is urgently required elsewhere). If a record is not made at the time, the officer must do so as soon as practicable afterwards. There may be situations in which it is not practicable to obtain the information necessary to complete a record, but the officer should make every reasonable effort to do so.” E. Reports by Lord Carlile of Berriew QC on the operation of the section 44 stop and search power 37. Section 126 of the 2000 Act requires the Secretary of State to lay a report on the working of the Act before Parliament at least once every 12 months and Lord Carlile of Berriew QC has been appointed as Independent Reviewer to prepare the annual report, inter alia. 38. In paragraph 5.8 of his report on the operation of the Act in 2001 Lord Carlile briefly summarised the effect of section 44-47 and then said: “ No difficulties have been drawn to my attention in relation to the exercise of these powers. They were used extensively in 2001. I have examined the full list of such authorisations, which have been deployed in almost every police authority area in Great Britain. It would not be in the public interest to provide details of the reasons and events. I am satisfied that their use works well and is used to protect the public interest, institutions, and in the cause of public safety and the security of the state. I have been able to scrutinise the documentation used for Section 44 authorisations. It is designed to limit inconvenience to the general public, and to ensure that no authorisation is given without detailed and documented reasons. ” 39. In Lord Carlile's “Report on the Operation in 2002 and 2003 of the Terrorism Act 2000”, he commented on the section 44 power as follows: “67. Part 5 of the Act contains counter-terrorism powers available to the police to deal with operational situations. During 2003 these powers have become more controversial, particularly because of increased levels of protest arising from the war against Iraq. In particular, section 44 has been the cause of considerable anxiety and debate. ... 75. Last year I asserted that no particular problems had been drawn to my attention from the operation of these provisions during 2001. The opposite has been the case in relation to 2003. I have received many complaints, some from organisations and others from individuals. I cannot comment here on individual cases ... ... 79. In London there have been rolling 28 day authorisations for the whole of the area policed by the Metropolitan police and the City of London Police. I have seen detailed figures for the use of the powers in every part of that area. In some parts of London the section 44/45 powers have been used very little. In others, with obvious targets such as an airport or Parliament, there has been more extensive use, as one would expect. There is no part of London where the powers have not been used at all between the beginning of February 2001 and the end of August 2003, the period for which I have statistics. There are huge differences between the boroughs in this context: I take this to be evidence of specific operational decisions by the police. The nature of London means that a terrorist may well live in one borough, have associates in others, and have targets in yet others. Having said that, at present there is no other city with continuous section 44 authorisations. ... 83. Lord Justice Brooke's judgment [in the present case: see paragraph 11 above] exactly reflects my own concerns on this front. Whilst the section 44 authorisations for the Metropolitan Police area, and for parts of Gloucestershire and neighbouring areas, at the material times were justifiable and proof from judicial review, their use gave some rise for anxiety. That anxiety arises from the contents of section 45, and the difficulty faced in real-time situations by constables confronted by complex legislative decisions. 84. Pursuant to section 45, a section 44/45 search can be carried out by a constable in an authorised area whether or not he has grounds for suspicion, but may only be'for articles of a kind which could be used in connection with terrorism'. This calls at least theoretically for officers to pause for thought between (a) stop, (b) commencement of search, and (c) during search. If the search commences as defined in section 45(1)(a), but the officer realises at any given moment that in reality he is searching for non-terrorism articles, he should change gear into a non-[Terrorism Act 2000] search procedure. This is asking a lot of an officer who may have been briefed in short form at a testing scene. ... 86. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. London is a special case, having vulnerable assets and relevant residential pockets in almost every borough. The use of section 44 authorisations elsewhere in the country has been relatively sparing. However, I would urge the Home Office and [the Association of Chief Police Officers] ... to produce new, short, clear and preferably nationally accepted guidelines for issue to all officers in section 44 authorised areas. All briefings should remind officers that, even where there is a section 44 authorisation, other stop and search powers may be judged more appropriate with some individuals stopped. Whilst agreeing with the Chief Constable of Gloucestershire that the powers are drawn widely, and with the Metropolitan Police that they have great potential utility to protect the public, in using the powers appropriate attention should be given to the important right to protest within the law.” 40. In his report on the operation of the 2000 Act in 2005 (May 2006), Lord Carlile commented: “ 91. In 2003 and 2004 I received many complaints, some from organisations and others from individuals, about the operation of sections 44 and 45. These and some litigation have been taken seriously by the police. As a result, I have been consulted upon and have been able to contribute to work towards providing a clearer understanding throughout police forces of the utility and limitations of sections 43-45. 92. The crucial thing is that police officers on the ground, exercising relatively unfamiliar powers sometimes in circumstances of some stress, should have a greater degree of knowledge of the scope and limitations of those powers. Terrorism related powers should be used for terrorism related purposes; otherwise their credibility is severely damaged. An incident on the 31st March 2006 at a hospital in Staffordshire yet again highlighted this. In a diverse community the erroneous use of powers against people who are not terrorists is bound to damage community relations. ... 95. ... [Section 44 ] authorisations have been used extensively in 2005, unsurprisingly in the immediate aftermath of the events of the 7th and 21st July. 96. Although available in Scotland, to date section 44 powers have never been authorised by a Scottish police force. I had anticipated that they might have been deployed for the 2005 meeting of the G8 Summit in Scotland. They were not. London apart, I doubt that there is evidence that Scotland is less at risk from terrorism than other parts of the country. This perpetuates the question of why section 44 is needed in England and Wales if it is not required in Scotland. There is no other provision specific to Scots Law to explain the difference of approach. At the very least this demonstrates that other powers are on the whole perfectly adequate for most purposes. 97. My view continues as expressed a year ago - that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas but not others with strikingly similar risk profiles. This view has not been affected by the events of July 2005. 98. I remain sure that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. 99. The Home Office scrutinises applications critically. It is a sound approach for them to refuse unless the circumstances are absolutely clear. 100. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. London is a special case, having vulnerable assets and relevant residential pockets in almost every borough, and fairly extensive use is understandable. However, I emphasise that they should be used sparingly. Evidence of misuse, especially in an arbitrary way, will not find favour with the courts and could fuel demands for repeal. It involves a substantial encroachment into the reasonable expectation of the public at large that they will only face police intervention in their lives (even when protesters) if there is reasonable suspicion that they will commit a crime. ” 41. In his report on the operation of the 2000 Act in 2006 (June 2007), Lord Carlile observed: “ 113. My view continues as expressed in the past two years – that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas but not others with strikingly similar risk profiles. 114. I remain sure that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Its utility has been questioned publicly by senior Metropolitan Police staff with wide experience of terrorism policing. 115. The Home Office continues to scrutinise applications critically. I think that they could and should refuse more often. There are instances in which public order stop and search powers are as effective – and they are always more palatable to those stopped and searched. 116. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. However, I emphasise again that they should be used sparingly. They encroach into the reasonable expectation of the public at large that they will only face police intervention in their lives (even when protesters) if there is reasonable suspicion that they will commit a crime. ” 42. In his report into the operation of the 2000 Act in 2007 (June 2008), Lord Carlile noted that the criticism of the section 44 power had increased further during the preceding year and continued: “130. I am sure beyond any doubt that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Whilst arrests for other crime have followed searches under the section, none of the many thousands of searches has ever related to a terrorism offence. ... ” Nonetheless, he concluded that the powers remained necessary and proportionate to the continuing terrorist threat. 43. Finally, in his report on the operation of the 2000 Act in 2008 (June 2009), Lord Carlile commented: “140. Examples of poor or unnecessary use of section 44 abound. I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop. In one situation the basis of the stops being carried out was numerical only, which is almost certainly unlawful and in no way an intelligent use of the procedure. Chief officers must bear in mind that a section 44 stop, without suspicion, is an invasion of the stopped person's freedom of movement. I believe that it is totally wrong for any person to be stopped in order to produce a racial balance in the section 44 statistics. There is ample anecdotal evidence that this is happening. I can well understand the concerns of the police that they should be free from allegations of prejudice; but it is not a good use of precious resources if they waste them on self-evidently unmerited searches. It is also an invasion of the civil liberties of the person who has been stopped, simply to'balance'the statistics. The criteria for section 44 stops should be objectively based, irrespective of racial considerations: if an objective basis happens to produce an ethnic imbalance, that may have to be regarded as a proportional consequence of operational policing. 141. Useful practice guidance on stop and search in relation to terrorism was produced during 2008 by the National Policing Improvement Agency on behalf of the Association of Chief Police Officers [ACPO]. This guidance emphasises crucial requirement, which include that – ● These powers are exceptional ● The geographical extent of section 44 authorisations must be clearly defined ● The legal test is expediency for the purposes of preventing acts of terrorism ● Community impact assessments are a vital part of the authorisation process ● The Home Secretary should be provided with a detailed justification for a section 44 authorisation ● Chief officers must expect the Home Office to apply detailed and rigorous scrutiny in considering whether to confirm authorisations ● Leaflets should be made available to the public in an area where the power is being deployed ● Officers must keep careful records ... 146. My view remains as expressed in the past four years, but reinforced: that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas, and in relation to some sites, but not others with strikingly similar risk profiles. Where other stop and search powers are adequate to meet need, there is no need to apply for or to approve the use of the section. Its primary purpose is to deal with operationally difficult places at times of stress, when there is a heightened likelihood of terrorists gaining access to a significant location. For example, I have no criticism of its careful use at the time of a major demonstration at London Heathrow Airport : terrorists might well use the opportunity of participation in such a demonstration to enter, photograph or otherwise reconnoitre, and otherwise add to their knowledge of a potential target such as Heathrow. Nor do I criticise its use at or near critical infrastructure or places of especial national significance. 147. I now feel a sense of frustration that the Metropolitan Police still does not limit their section 44 authorisations to some boroughs only, or parts of boroughs, rather than to the entire force area. I cannot see a justification for the whole of the Greater London area being covered permanently, and the intention of the section was not to place London under permanent special search powers. However, a pilot project is about to start in which the section is deployed in a different way. I shall examine that project closely. The alarming numbers of usages of the power (between 8,000 and 10,000 stops per month as we entered 2009) represent bad news, and I hope for better in a year's time. The figures, and a little analysis of them, show that section 44 is being used as an instrument to aid non-terrorism policing on some occasions, and this is unacceptable. 148. I am sure that safely it could be used far less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Whilst arrests for other crime have followed searches under the section, none of the many thousands of searches has ever resulted in conviction of a terrorism offence. Its utility has been questioned publicly and privately by senior Metropolitan Police staff with wide experience of terrorism policing. 149. It should not be taken that the lesser usage of section 44 in places other than London means that such places are less safe, or more prone to terrorism. There are different ways of achieving the same end. The effect on community relations of the extensive use of the section is undoubtedly negative. Search on reasonable and stated suspicion, though not in itself a high test, is more understandable and reassuring to the public. 150. I emphasise that I am not in favour of repealing section 44. Subject to the views expressed above, in my judgment section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. ” F. Ministry of Justice statistics on race and the use of the section 44 stop and search power 44. Under section 95 of the Criminal Justice Act 1991, the Secretary of State is under an obligation to publish information relating to the criminal justice system with reference to avoiding discrimination on the ground of race. In a report published pursuant to this obligation in October 2007, “ Statistics on Race and the Criminal Justice System – 2006 ”, the Ministry of Justice recorded that: “ A total of 44,543 searches were made under section 44(1) and 44(2) of the Terrorism Act 2000 in 2005/6 compared with 33,177 in 2004/5, an overall increase of 34% (Table 4.6). Searches of Asian people increased from 3,697 to 6,805 (up 84%), searches of Black people increased from 2,744 to 4,155 (up 51%). Searches of people in the Other ethnic group also increased, from 1,428 in 2004/5 to 1,937 in 2005/6 (up 36%), as did searches of White people, increasing from 24,782 in 2004/5 to 30,837 in 2005/6 (up 24%). Over half of searches took place in the Metropolitan Police area and 15% in the City of London, compared to 40% and 20% respectively in 2004/5. The large increases in comparison to the 2004/5 figures may be explained, in part, by the London bombings of 7 July 2005. As with stop and searches under s. 1 PACE, resultant increased street activities of the police led to an increase in the use of stop and search powers under Section 44 of the Terrorism Act 2000. In 2005/6, 25,479 searches of vehicle occupants were made under section 44 (1) (Table 4.7). Seventy-five per cent of those searched in 2005/6 were White, 11% Asian and 8% Black. There was a slight increase in the proportion of White people searched and a slight fall in the proportion of Black people searched under this provision compared to 2004/5. Forty-six arrests of vehicle occupants in connection with terrorism resulted from section 44 (1) searches, compared to 38 in the previous year. Arrests under non-terrorism legislation following the use of this provision remained constant between 2004/5 and 2005/6 at 246. Most arrests following a section 44 (1) search were in London. This most likely reflects the increased use of the powers in London. The number of stop and searches of pedestrians under section 44(2) nearly doubled between 2004/5 and 2005/6 with 19,064 stop and searches recorded in 2005/6. This increase was accounted for by the increase in use of the power in London. Use of the power in areas outside of London decreased by 19% between 2004/5 and 2005/6. In 2005/6, 61% of people stopped under section 44(2) were White compared to 74% in 2004/5 and 72% in 2003/4. The proportions for Black and Asian people fell to 11% and 21% respectively in 2005/6. In 2005/6, 59 arrests in connection with terrorism resulted from section 44 (2) searches compared to 24 in the previous year and five in 2003/4. Arrests under non-terrorist legislation rose from 153 in 2004/5 to 212 in 2005/6.” 45. In the report published the following year, in July 2008, “ Statistics on Race and the Criminal Justice System – 2006/7 ”, the Ministry of Justice recorded that: “ A total of 37,000 searches were made under section 44(1) and 44(2) of the Terrorism Act 2000 in 2006/7 compared with 45,000 in 2005/6 and represents a decrease of 16.5% (Table 4.6). Over a third of police force areas did not record any use of this power in 2006/7. Searches decreased for all ethnic groups but the biggest fall was for Asian people (19.1%), followed by those in the White group (15.8%), those in the Other category (15.4%), and lastly Black people (13.3%). Nine areas did increase the number searched under Section 44 and this included the [ Metropolitan Police] who registered an 11.3% rise. This contrasts with the City of London where there was a 69.2% fall. The proportion of Asian people searched under Section 44 in the Met police area (19.1%) exceeded the proportion of Black persons (12.5%). In 2006/7 23,000 searches of vehicle occupants were made under Section 44(1) (Table 4.7). Seventy-two per cent of those searched during this period were White, a fall of three percentage points on the previous year, 10% Black (up 2 percentage points), and 13% Asian (up 2 percentage points). Fourteen arrests of vehicle occupants in connection with terrorism resulted from Section 44 (1) searches, compared to 46 the previous year. Four of these involved Black persons and four Asians. Arrests under non-terrorism legislation following the use of this provision have remained constant between 2004/5 and 2006/7 at 246. The number of stop and searches of pedestrians under Section 44(2) has reduced by just over 28% between 2005/6 and 2006/7 from 19,000 to 13,700. A large part of this fall can be accounted for by the decrease in the City of London from 3,149 to 425 over the two year period. The proportion of White pedestrians searched under Section 44(2) has increased since the previous year from 61% of the total to 66%. Asian people remain the highest BME group both searched (17%) and subsequently arrested in connection with terrorism (29%) .” 46. The most recent report, “ Statistics on Race and the Criminal Justice System 2007/8 ”, published in April 2009, recorded a significant increase in the use of the section 44 powers: “ A total of 117,278 searches of people were made under section 44 (1) and 44 (2) of the Terrorism Act 2000 in 2007/08 compared with 37,197 in 2006/07 and represents an increase of 215% (Table 4.6). Just under a fifth (19%) of police force areas did not record any use of this power in 2007/08. Searches increased for all ethnic groups but the biggest rise was for Black people (322%), followed by those in the Asian group (277%), those in the Other category (262%), and lastly White people (185%). The large rise in the number of stop and searches made under the Terrorism Act largely reflects increases in the use of this power by the Metropolitan police. In 2007/08 the Metropolitan police were responsible for 87% of searches made under section 44 (1) and 44 (2) of the Terrorism Act 2000, compared to 68% of those made in 2006/07. The Metropolitan police used this power on 76,496 more occasions than in the previous year, which represents an increase of 303%. This rise is directly attributable to the robust response by the Metropolitan police to the threat of terror related networks in London since the Haymarket bomb in 2007. Tables 4.7 and 4.8 show selected police force areas, where the total number stopped and searched under s. 44 (1) & (2) of the Terrorism Act 2000 exceeded 1,000 people in 2007/08. In 2007/08, 65,217 searches of vehicle occupants were made under Section 44 (1) (Table 4.7). Sixty-four per cent of those searched during this period were White, a fall of eight percentage points on the previous year, 13% were Black (up 3 percentage points), and 16% were Asian (up 4 percentage points). Thirty-four arrests of vehicle occupants in connection with terrorism resulted from Section 44 (1) searches, compared to 14 the previous year. Nine of these involved Black persons and 10 Asians. Arrests under non-terrorism legislation following the use of stop and search under Section 44 (1) increased to 665 from 246 in 2006/07. The number of stop and searches of pedestrians under Section 44 (2) has increased by 280% between 2006/07 and 2007/08 from 13,712 to 52,061 (Table 4.8). As previously mentioned, this large increase can be attributable to the Metropolitan police's robust response to the Haymarket bombs. The proportion of White pedestrians searched under Section 44 (2) has decreased since the previous year from 66% of the total to 61%. Asian people remain the highest BME group both searched (19%) and subsequently arrested in connection with terrorism (29%) .” G. The Seventh Report of the Joint Committee on Human Rights 47. In its Report, “Demonstrating respect for rights? A human rights approach to policing protest”, published in March 2009, the Parliamentary Joint Committee on Human Rights recommended, in connection with section 44 of the 2000 Act: “ Counter-terrorism powers 86. A significant number of witnesses expressed serious concerns at the use of counter-terrorism powers on protestors, particularly the power under section 44 of the Terrorism Act 2000 to stop and search without suspicion. Witnesses suggested that the use of the powers contravened the OSCE/ODIHR Guidelines which note: Domestic legislation designed to counter terrorism or'extremism'should narrowly define these terms so as not to include forms of civil disobedience and protest; the pursuit of certain political, religious, or ideological ends; or attempts to exert influence on other sections of society, the government, or international opinion. 87. The National Union of Journalists complained that the police had relied on the Terrorism Act 2000 to prevent journalists from leaving demonstrations. Some witnesses noted that restrictions on peaceful protests were increasingly justified by reference to the security threat. The following comment by David Mead reflects the views of a number of witnesses: ... there can be no justification to call upon anti-terrorism legislation to police protests/protestors and such use debases the very real threat terrorists are capable of posing to us all. 88. High profile examples of the inappropriate use of counter-terrorism powers include: preventing Walter Wolfgang from re-entering the Labour Party conference in Brighton in 2005, following his physical ejection for heckling the then Foreign Secretary Jack Straw MP; and stopping and searching a protestor and a journalist at an arms fair at the Excel Centre in Docklands, East London in 2003. Less well-known examples include the use of stop and search on demonstrators at military bases or people wearing slogans on t-shirts. 89. The Research Defence Society and the author and commentator Richard D. North both distinguished protestors (including animal rights extremists) from terrorists. Mr North said'terrorism is a word we ought to reserve for some kind of insurgency, or guerrilla of asymmetrical warfare'. In contrast, Huntingdon Life Sciences argued in relation to protest against its activities by animal rights activists, however, that'insufficient consideration was given to counter-terrorism powers in what was widely considered in practice (but not in name) to be domestic terrorism'. 90. When we asked police representatives whether it was appropriate to use counter-terrorism powers against protestors, AAC Allison replied that'there are occasions when we do need to use our counter-terrorism powers: I would say that that is why we have them'. 91. Addressing the same question, the Minister was clear that counter-terrorism powers should only be used in relation to terrorism. He noted that the Prime Minister had ordered a review into the use of stop and search powers and as a result new guidance had been published. He pointed out, however, that: If you have a big protest near a big power station or airport, [ ... ] it is very difficult to say that under no circumstances should the police in those situations ever consider using a counterterrorism power when we all know it is perfectly possible for the legitimate protestors to be infiltrated by one or two who may have other desires ... 92. The new guidance on stop and search noted that the powers to stop and search under sections 43 and 44 of the Terrorism Act 2000 only allow an officer to'search for articles of evidence that relate to terrorism'and that'[the section 44] power should be used sparingly'. In the light of the decision of the House of Lords in Gillan, which concerned the use of the stop and search power on protestors and journalists outside an arms fair in the Docklands in London, the guidance states that stop and search should never be used to conduct arbitrary searches but should be based on objective criteria. The guidance refers to protests, noting that section 44 may be appropriate for large public events that may be at risk from terrorism, but states'officers should also be reminded at briefings that stop and search powers under the Terrorism Act 2000 must never be used as a public order tactic.'The only reference to human rights is contained in the section of the guidance on the contents of the community impact assessment: it suggests that'the requirements of the Human Rights Act 1998'should be included in the community impact assessment. Although not specifically referring to journalists, the guidance states that the Terrorism Act 2000, even where a section 44 designation is in place, does not prevent people from taking photographs. In addition, although film and memory cards may be seized as part of a search, officers do not have a legal power to delete images or destroy film. 93. Whilst we accept that there may be circumstances where the police reasonably believe, on the basis of intelligence, that a demonstration could be used to mask a terrorist attack or be a target of terrorism, we have heard of no examples of this issue arising in practice. We are concerned by the reports we have received of police using counter-terrorism powers on peaceful protestors. It is not clear to us whether this stems from a deliberate decision by the police to use a legal tool which they now have or if individual officers are exercising their discretion inappropriately. Whatever the reason, this is a matter of concern. We welcome the Minister's comments that counter-terrorism legislation should not be used to deal with public order of protests. We also welcome the recommendation in the new guidance to human rights being included in community impact assessments. We recommend that the new guidance on the use of the section 44 stop and search power be amended to make clear that counter-terrorism powers should not be used against peaceful protestors. In addition, the guidance should make specific reference to the duty of police to act compatibly with human rights, including, for example, by specifying the human rights engaged by protest .” H. Metropolitan police proposal to curtail use of the section 44 powers in London 48. In May 2009 the Metropolitan Police published a report summarising the conclusions of their review into the use of the power under section 44 of the 2000 Act. The report stated that the “ emerging findings ” from the review supported a three-layered approach to the use of the power, namely that the power should continue to be available in the vicinity of sites across London of key symbolic or strategic importance, but that elsewhere, except where authorised by a specific directive, officers should only stop and search individuals using the power under section 43 of the 2000 Act, where they had grounds to suspect that the person might be engaged in a terrorism-related offence. THE LAW 49. The applicants complained that their being stopped and searched by the police under sections 44 -47 of the 2000 Act gave rise to violations of their rights under Articles 5, 8, 10 and 11 of the Convention. Article 5 provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” Article 8 provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 10 provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Article 11 provides: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” I. ADMISSIBILITY 50. The Government submitted that the applicants had not fully exhausted domestic remedies. First, they had not pursued the offer made by the High Court to hold a closed hearing with a special advocate to assist in determining whether or not, in the light of all the evidence relating to the risk of terrorist attack, the police and Secretary of State had been justified in issuing and confirming the authorisation order under section 44 of the 2000 Act (see paragraph 10 above). Secondly, the applicants did not appeal against the County Court's judgment rejecting their claims that, on the facts, the stop and search powers had been used against them in the vicinity of the arms fair unlawfully and for an improper purpose (see paragraph 24 above). It followed, therefore, that insofar as the applicants sought to argue before the Court that either the authorisation order in question or the stop and search measures used against them by the police had not been justified on the facts, they had failed to exhaust domestic remedies. 51. The applicants submitted that their complaint in the proceedings before the Court related to the compatibility of the terms of the statutory scheme with the Convention; it was their contention that, even if the power was used in accordance with domestic law, it breached Convention rights. They had brought this challenge in the domestic proceedings up to and including the House of Lords. While it was correct that they had not sought before the national courts to challenge the intelligence which had led to the making of the authorisation under section 44, this did not form part of their challenge in the present application either. The County Court proceedings had been stayed until the House of Lords gave judgment. Once that judgment had been delivered, the resumed County Court proceedings were limited to determining whether the section 44 powers had been exercised in accordance with domestic law. An appeal against the County Court's judgment would not, therefore, have been an effective remedy in respect of the applicants'complaints under the Convention. 52. The Court notes that the applicants'complaints in the present case are focussed on the general compatibility of the stop and search powers with the above provisions of the Convention. They do not seek to challenge whether the section 44 authorisation which applied to them was justified in view of the intelligence available to the Metropolitan Police Commissioner and the Secretary of State, nor whether the constables stopped them “for the purpose of searching for articles of a kind which could be used in connection with terrorism.” Since the applicants do not, therefore, dispute that the stop and search measures used against them complied with the terms of the 2000 Act, the remedies identified by the Government would have been neither relevant nor effective in relation to the complaints before the Court. It therefore rejects the Government's preliminary objection. 53. The Court notes, in addition, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. II. THE MERITS A. Alleged violation of Article 5 of the Convention 1. The parties'submissions 54. The applicants contended that when the police officers stopped and searched them they were subjected to a deprivation of liberty within the meaning of Article 5 § 1. It was relevant that the police officer had the power to compel compliance with the section 44 procedure and had express powers to use reasonable force and/or to detain a person who refused to submit. The applicants had had no choice as to whether or not to comply with the police officer's order and would have been liable to criminal prosecution if they had refused. There was a total restraint on their liberty: they could not choose to turn around and walk away. Moreover, this power absolutely to restrict a person's movement was provided for the purpose of securing compliance with the search power, not merely incidental to it. Whilst the procedure might sometimes be relatively brief, that was not necessarily the case, especially given the breadth of the search power and the fact that a person could be required to remain with the police officer for as long as was reasonably necessary to permit the search to be carried out. It was the applicants'case that, if Article 5 did apply, the measures in question were not “lawful” and “in accordance with a procedure prescribed by law” because of the breadth of the discretion afforded to the executive. 55. The Government submitted that the Court had never found the exercise of a power to stop and search to constitute a deprivation of liberty within Article 5 of the Convention. Moreover, in a number of cases the Convention organs had refused to find that restrictions on liberty far more intrusive than those at issue in the present case fell within the ambit of Article 5 (the Government referred inter alia to Raimondo v. Italy, 22 February 1994, Series A no. 281 ‑ A; Trijonis v. Lithuania, no. 2333/02, 15 December 2005; Raninen v. Finland, 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII; Gartukayev v. Russia, no. 71933/01, 13 December 2005; and also Cyprus v. Turkey, no. 8007/77, Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p. 85, § 235; X. v. Germany, no. 8334/78, Commission decision of 7 May 1981, DR 24, p. 131; Guenat v. Switzerland, no. 2472/94, Commission decision of 10 April 1995, DR 81-B, p. 13 ). The Government argued that when the power to stop and search was looked at against this background, the ordinary exercise by the police of such a power would plainly not in usual circumstances engage Article 5, and did not do so in the applicants'cases. There were a number of specific features which argued against the applicability of Article 5 in the particular circumstances of each applicant's case. First, the duration of the searches (20 minutes in respect of the first applicant and either five or 30 minutes in respect of the second) was clearly insufficient to amount to a deprivation of liberty in the absence of any aggravating factors. Secondly, the purpose for which the police exercised their powers was not to deprive the applicants of their liberty but to conduct a limited search for specified articles. Thirdly, the applicants were not arrested or subjected to force of any kind. Fourthly, there was no close confinement in a restricted place. Fifthly, the applicants were not placed in custody or required to attend a particular location: they were searched on the spot. The Government further reasoned that if, contrary to their submissions, Article 5 were held to apply, the stop and search of each applicant was lawful and justified under Article 5 § 1(b). 2. The Court's assessment 56. The Court recalls that Article 5 § 1 is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4, which has not been ratified by the United Kingdom. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Guzzardi v. Italy, 6 November 1980, §§92-93, Series A no. 39; Ashingdane v. the United Kingdom, 28 May 1985, § 41, Series A no. 93; H.L. v. the United Kingdom, no. 45508/99, § 89, ECHR 2004 ‑ IX). 57. The Court observes that although the length of time during which each applicant was stopped and search did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see, for example, Foka v. Turkey, no. 28940/95, §§ 74-79, 24 June 2008). In the event, however, the Court is not required finally to determine this question in the light of its findings below in connection with Article 8 of the Convention. B. Alleged violation of Article 8 of the Convention 1. Whether there was an interference with the applicants'Article 8 rights 58. The Court will first consider whether the stop and search measures amounted to an interference with the applicants'right to respect for their private life a. The parties'submissions 59. The applicants pointed out that the Court of Appeal had described section 44 as “an extremely wide power to intrude on the privacy of members of the public” and the Metropolitan Police Commissioner had conceded in the domestic court that the exercise of the powers amounted to an interference with the individual's Article 8 rights (see paragraph 14 above). They submitted that Lord Bingham had been wrong to conclude that Article 8 was not engaged because “an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach” the requisite level of seriousness. They reasoned that a person at an airport submitted to be searched because it was known that airport officials had coercive powers and because the freedom to travel by air was conditional upon agreeing to be searched. Such a person could, therefore, choose not to travel by air or leave behind any personal items which he would not wish to have examined in public. Section 44 was, however, qualitatively different. Citizens engaged in lawful business in any public place could, without any prior notice or any reasonable suspicion of wrongdoing whatsoever, be required to submit all their personal effects to a detailed coercive examination. They could not turn away and leave, as they could if they were, for example, hesitant to enter a public building with a search at the entrance. They would have no idea in advance that they were present in an area where active section 44 powers were in force. The Court's case-law, for example Peck v. the United Kingdom, no. 44647/98, §§ 57-63, ECHR 2003-I, made it clear that an individual did not automatically forfeit his privacy rights merely by taking his personal items into a public place such as a street. Moreover, the common thread running through Article 8 was personal autonomy. That concept was substantially undermined by the police power to require submission to a coercive search in a public place, particularly since the lack of prior notice entailed that everyone had to assume that, wherever they went in public, they might be required to submit to a search. 60. The Government submitted that the searches of the applicants did not amount to an interference with their right to respect for their private lives. Not every act that might impinge upon a person's autonomy or physical integrity would entail such an interference ( see Costello-Roberts v. the United Kingdom, § 36, judgment of 25 March 1993, Series A no. 247-C ). Whether or not the right to private life was engaged by a particular measure impinging on a person's autonomy or physical integrity would depend both upon the seriousness of that measure and upon the degree to which the person concerned had in the circumstances acted in a sphere where public life or the interests of other people were necessarily engaged. While the Government accepted that in certain circumstances a particularly intrusive search might amount to an interference with Article 8, they submitted that a normal, respectful search under section 45 of the 2000 Act would not and that there was no interference in the applicants'cases. The applicants were not searched at home, or even in a police station, but on the spot. In accordance with the Code (see paragraph 36 above), since neither applicant was asked to remove any articles of clothing, only an examination of outer garments and bags was conducted, of the type to which passengers regularly submit at airports. The applicants were not asked for personal details beyond their names, addresses and places of birth. In both cases, the intrusion was of relatively brief duration. Moreover, the applicants had brought themselves into contact with the public sphere through their voluntary engagement with a public demonstration. The fact that in other circumstances a more intrusive search might be conducted did not enable the present applicants to complain of any interference with their rights under Article 8: the Court did not examine the possible operation of legislation in abstracto. b. The Court's assessment 61. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. The notion of personal autonomy is an important principle underlying the interpretation of its guarantees (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III). The Article also protects a right to identity and personal development, and the right to establish relationships with other human beings and the outside world. It may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”. There are a number of elements relevant to a consideration of whether a person's private life is concerned in measures effected outside a person's home or private premises. In this connection, a person's reasonable expectations as to privacy may be a significant, though not necessarily conclusive, factor ( see P.G. and J.H. v. the United Kingdom, no. 44787/98, §§ 56-57, ECHR 2001-IX and Peck, cited above, § § 57-63 ). In Foka, cited above, § 85, where the applicant was subjected to a forced search of her bag by border guards, the Court held that “any search effected by the authorities on a person interferes with his or her private life.” 62. Turning to the facts of the present case, the Court notes that sections 44-47 of the 2000 Act permit a uniformed police officer to stop any person within the geographical area covered by the authorisation and physically search the person and anything carried by him or her. The police officer may request the individual to remove headgear, footwear, outer clothing and gloves. Paragraph 3.5 of the related Code of Practice further clarifies that the police officer may place his or her hand inside the searched person's pockets, feel around and inside his or her collars, socks and shoes and search the person's hair (see paragraph 36 above). The search takes place in public and failure to submit to it amounts to an offence punishable by imprisonment or a fine or both (see paragraph 33 above). In the domestic courts, although the House of Lords doubted whether Article 8 was applicable, since the intrusion did not reach a sufficient level of seriousness, the Metropolitan Police Commissioner conceded that the exercise of the power under section 44 amounted to an interference with the individual's Article 8 rights and the Court of Appeal described it as “an extremely wide power to intrude on the privacy of the members of the public”. (see paragraphs 14 and 19 above). 63. The Government argue that in certain circumstances a particularly intrusive search may amount to an interference with an individual's Article 8 rights, as may a search which involves perusing an address book or diary or correspondence, but that a superficial search which does not involve the discovery of such items does not do so. The Court is unable to accept this view. Irrespective of whether in any particular case correspondence or diaries or other private documents are discovered and read or other intimate items are revealed in the search, the Court considers that the use of the coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life. Although the search is undertaken in a public place, this does not mean that Article 8 is inapplicable. Indeed, in the Court's view, the public nature of the search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his companions or the wider public. 64. The Court is also unpersuaded by the analogy drawn with the search to which passengers uncomplainingly submit at airports or at the entrance of a public building. It does not need to decide whether the search of the person and of his bags in such circumstances amounts to an interference with an individual's Article 8 rights, albeit one which is clearly justified on security grounds, since for the reasons given by the applicants the situations cannot be compared. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice, since he can leave personal items behind and walk away without being subjected to a search. The search powers under section 44 are qualitatively different. The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search. 65. Each of the applicants was stopped by a police officer and obliged to submit to a search under section 44 of the 2000 Act. For the reasons above, the Court considers that these searches constituted interferences with their right to respect for private life under Article 8. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see, for example, Liberty and Others v. the United Kingdom, no. 58243/00, § 58, ECHR 2008- ... ). 2. Whether the interference was “in accordance with the law” a. The parties'submissions i. The applicants 66. The applicants submitted that the object of the legal certainty requirement running through the Convention was to give protection against arbitrary interference by the public authorities. It followed that “law” must be accessible, foreseeable and compatible with the rule of law, giving an adequate indication of the circumstances in which a power might be exercised and thereby enabling members of the public to regulate their conduct and foresee the consequences of their actions. The executive could not be granted an unfettered discretion; moreover, the scope of any discretion conferred on the executive had to be defined with such precision, appropriate to the subject matter, as to make clear the conditions in which a power might be exercised. In addition, there had to be legal safeguards against abuse. 67. The applicants submitted that the requirement of accessibility was not met in their case. Whilst sections 44-47 of the 2000 Act were adequately accessible to the public, the authorisation and confirmation were not. Thus, a member of the public would know that a section 44 power to stop and search could be conferred on the police, but would not know at any given time or in any given place whether it had been so conferred. He could not know whether, if he went to any particular location, he would be liable to be stopped and searched and, if he were stopped and searched, he could not know whether the police officer was authorised to carry out the procedure. When, unknown to a member of the public, the power had been conferred on a constable, the constable's discretion to stop and search was broad and ill-defined, requiring no grounds of suspicion and constrained solely by the condition that it could be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism. 68. They contended that although the 2000 Act and Code A (see paragraphs 28-36 above) informed the public of the availability and scope of the section 44 powers, if duly authorised, they did not require the fact or details of any authorisation to be publicised in any way, even retrospectively. In the applicants'view, the efficacy of the section 44 power would not be weakened by advance notification of its availability. Prior notice would reinforce the deterrent effect of the measure. Furthermore, the availability and scope of other stop and search powers, for example, at ports and borders, were publicised without undermining their efficacy. During the domestic proceedings the Government had consented to the retrospective publication of the authorisations relevant to the case, which covered the whole of the Metropolitan Police District. It could not be correct that the purpose of using the section 44 power had been “wholly undermined” because the extent of the authorisation was now known. 69. The applicants further alleged that there were insufficient safeguards against misuse of the power to stop and search. The Government had appointed an Independent Reviewer into the operation of the 2000 Act (see paragraphs 37-43 above). However, concerning the “extensive” deployment nationwide of section 44 powers, for example, Lord Carlile had decided that it would not be in the public interest to provide details of the reasons and events. 70. No prior judicial authorisation was required for the availability of the power and the possibility of bringing proceedings in the County Court to determine whether the power had been properly and lawfully used was a wholly inadequate safeguard against misuse and arbitrariness. The ex post facto review of the exercise of the power by the County Court in any individual's case did not rectify the lack of legal certainty associated with the power. The applicants'own cases illustrated this point: once the House of Lords had rejected their complaints under the Convention, it was open to the County Court only to determine whether the officers were actually looking for terrorist articles and whether the applicants were obviously not terrorist suspects, a question to which a positive answer was virtually impossible. The removal of the “reasonable suspicion” requirement, or any other objective basis for the search, rendered the citizen extremely vulnerable to an arbitrary exercise of power, restrained only by the police officer's honesty to divulge what type of incriminating article he was looking for on the occasion in question. The lack of any practical and effective safeguards was compounded by the apparent breadth of the definition of “articles of a kind which could be used in connection with terrorism”. There was thus a real risk that the powers might be misused so as to regulate protest or to maintain public order, rather than to counter terrorism. This clearly had far-reaching consequences for civil liberties in the United Kingdom, particularly when, at the material time, the authorisation covered the whole of the Metropolitan Police District; had been continuously renewed every month for almost six years; and when there was no requirement that the authorisation be necessary or suitable, but only “expedient”, for preventing terrorism. ii. The Government 71. The Government submitted that the requirement of lawfulness under the Convention was met in the present case by a combination of the legislative provisions; the information given to individuals following a search under section 44; the precise instructions in the Code on how search powers were to be exercised; and the availability of court proceedings to challenge the use of those powers by the police in individual cases. Sections 44-45 of the 2000 Act were clear as to their effect. They gave notice to citizens that they might be required to submit to a stop and search and provided safeguards against abuse, well in excess of provisions of national law that the Court or Commission in cases had held to be sufficiently foreseeable in the national security context (as in, for example, Brind v. the United Kingdom (dec. ), no. 18714/91, 9 May 1994; Al-Nashif v. Bulgaria, no. 50963/99, §§ 117-129, 20 June 2002; Esbester v. the United Kingdom (dec. ), no. 18601/91, 2 April 1993). 72. In this regard, it was relevant that the statutory framework in sections 44-46 of the 2000 Act carefully defined and restricted the purposes for which the search powers could be used; who could issue authorisations; under what circumstances and for how long authorisations could be issued; who could confirm those authorisations; in what circumstances and for how long authorisations could be given and in what circumstances the search powers themselves could be exercised. In addition the Code, which was a public document, set out very detailed instructions on the exercise of the stop and search power. It required an officer conducting a search to explain to the individual who was stopped the precise purpose of the search, the nature of the legal power exercised and the fact and nature of any authorisation given for the search. The authorisation could be challenged by way of judicial review proceedings on the ground that it exceeded the enabling power in section 44 of the 2000 Act. If the search were claimed to have been conducted for improper purposes, or contrary to the provisions of the 2000 Act or the Code, it could be challenged by way of judicial review proceedings or in a County Court action for damages. Further protection against any arbitrary interference with individuals'rights was provided by the oversight of Lord Carlile, who was appointed as Independent Reviewer to monitor the exercise of the powers under the 2000 Act. 73. The Government rejected the applicants'contention that authorisations should be published in advance. First, and crucially, it would wholly undermine the purpose for which authorisations were given. Publishing details of authorisations would by implication reveal those places where such measures to protect against terrorist attack had not been put in place, identifying them as soft targets for terrorists. It would undermine the ability of the police to use stop and search powers effectively, without giving advance warning to terrorists, where they suspected terrorists to be operating. It would also assist terrorists in assessing the State's effectiveness in penetrating their networks or understanding their activities. 74. The Government maintained that there were adequate safeguards against the misuse of the power. The combination of oversight by the Independent Reviewer and scrutiny by the national courts fully met any assertion that the section 44-46 powers could be used arbitrarily. For example, in the applicants'case, the County Court was able to – and did – examine whether the officers used their powers under section 45 for their proper purpose, namely to look for terrorist articles. The officers were not free to act arbitrarily. The applicants had a right to cross-examine them and the court was free to form its own view about their evidence. The fact that, in the event, the County Court accepted the officers'evidence did not in any way indicate that its oversight was inadequate. 75. In the Government's view, the applicants'complaints in this connection were, in essence, a collateral attack on the absence of any “reasonable suspicion” requirement in sections 44-46 of the 2000 Act. But there were good reasons why officers should not have to act upon reasonable suspicion: as Lord Bingham pointed out in the House of Lords (see paragraph 21 above), this was to ensure that a constable was not deterred from stopping and searching a person whom he suspected as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion. It reflected the fact that intelligence rarely provided complete information about when and where a terrorist attack might occur and thus that vital decisions had to be taken on the basis of partial information. b. The Court's assessment 76. The Court recalls its well established case-law that the words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct ( S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95 and 96, ECHR 2008- ... ). 77. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise ( Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 4, ECHR 2000-XI; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I; see also, amongst other examples, Silver and Others v. the United Kingdom, 25 March 1983, §§ 88-90, Series A no. 61; Funke v. France, §§ 56-57, judgment of 25 February 1993, Series A no. 256-A; Al-Nashif v. Bulgaria, no. 50963/99, § 119, 20 June 2002; Ramazanova and Others v. Azerbaijan, no. 44363/02, § 62, 1 February 2007; Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria, no. 14134/02, § 46, ECHR 2007 ‑ XI (extracts); Vlasov v. Russia, no. 78146/01, § 125, 12 June 2008; Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, § 81, 17 June 2008). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, for example, Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999 ‑ VIII; S. and Marper, cited above, § 96). 78. It is not disputed that the power in question in the present case has a basis in domestic law, namely sections 44-47 of the 2000 Act (see paragraphs 28-34 above). In addition, the Code of Practice, which is a public document, sets out details of the manner in which the constable must carry out the search (see paragraphs 35-36 above). 79. The applicants, however, complain that these provisions confer an unduly wide discretion on the police, both in terms of the authorisation of the power to stop and search and its application in practice. The House of Lords considered that this discretion was subject to effective control, and Lord Bingham identified eleven constraints on abuse of power (see paragraph 16 above). However, in the Court's view, the safeguards provided by domestic law have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference. 80. The Court notes at the outset that the senior police officer referred to in section 44(4) of the Act is empowered to authorise any constable in uniform to stop and search a pedestrian in any area specified by him within his jurisdiction if he “considers it expedient for the prevention of acts of terrorism”. However, “expedient” means no more than “advantageous” or “helpful”. There is no requirement at the authorisation stage that the stop and search power be considered “necessary” and therefore no requirement of any assessment of the proportionality of the measure. The authorisation is subject to confirmation by the Secretary of State within 48 hours. The Secretary of State may not alter the geographical coverage of an authorisation and although he or she can refuse confirmation or substitute an earlier time of expiry, it appears that in practice this has never been done. Although the exercise of the powers of authorisation and confirmation is subject to judicial review, the width of the statutory powers is such that applicants face formidable obstacles in showing that any authorisation and confirmation are ultra vires or an abuse of power. 81. The authorisation must be limited in time to 28 days, but it is renewable. It cannot extend beyond the boundary of the police force area and may be limited geographically within that boundary. However, many police force areas in the United Kingdom cover extensive regions with a concentrated populations. The Metropolitan Police Force Area, where the applicants were stopped and searched, extends to all of Greater London. The failure of the temporal and geographical restrictions provided by Parliament to act as any real check on the issuing of authorisations by the executive are demonstrated by the fact that an authorisation for the Metropolitan Police District has been continuously renewed in a “rolling programme” since the powers were first granted (see paragraph 34 above). 82. An additional safeguard is provided by the Independent Reviewer (see paragraph 37 above). However, his powers are confined to reporting on the general operation of the statutory provisions and he has no right to cancel or alter authorisations, despite the fact that in every report from May 2006 onwards he has expressed the clear view that “section 44 could be used less and I expect it to be used less” (see paragraphs 38-43 above). 83. Of still further concern is the breadth of the discretion conferred on the individual police officer. The officer is obliged, in carrying out the search, to comply with the terms of the Code. However, the Code governs essentially the mode in which the stop and search is carried out, rather than providing any restriction on the officer's decision to stop and search. That decision is, as the House of Lords made clear, one based exclusively on the “hunch” or “professional intuition” of the officer concerned (see paragraph 23 above). Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched. The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets. Provided the person concerned is stopped for the purpose of searching for such articles, the police officer does not even have to have grounds for suspecting the presence of such articles. As noted by Lord Brown in the House of Lords, the stop and search power provided for by section 44 “radically ... departs from our traditional understanding of the limits of police power” (see paragraph 23 above). 84. In this connection the Court is struck by the statistical and other evidence showing the extent to which resort is had by police officers to the powers of stop and search under section 44 of the Act. The Ministry of Justice recorded a total of 33,177 searches in 2004/5, 44,545 in 2005/6, 37,000 in 2006/7 and 117,278 in 2007/8 (see paragraphs 44-46 above). In his Report into the operation of the Act in 2007, Lord Carlile noted that while arrests for other crimes had followed searches under section 44, none of the many thousands of searches had ever related to a terrorism offence; in his 2008 Report Lord Carlile noted that examples of poor and unnecessary use of section 44 abounded, there being evidence of cases where the person stopped was so obviously far from any known terrorism profile that, realistically, there was not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop. 85. In the Court's view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. While the present cases do not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons is a very real consideration, as the judgments of Lord Hope, Lord Scott and Lord Brown recognised. The available statistics show that black and Asian persons are disproportionately affected by the powers, although the Independent Reviewer has also noted, in his most recent report, that there has also been a practice of stopping and searching white people purely to produce greater racial balance in the statistics (see paragraphs 43-44 above). There is, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the Convention. 86. The Government argue that safeguards against abuse are provided by the right of an individual to challenge a stop and search by way of judicial review or an action in damages. But the limitations of both actions are clearly demonstrated by the present case. In particular, in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised. 87. In conclusion, the Court considers that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention. C. Alleged violations of Articles 10 and 11 of the Convention 88. The applicants further alleged that their rights to freedom of expression under Article 10, and freedom of assembly under Article 11, of the Convention were violated. It was argued that a stop and search which had the effect of delaying, even temporarily, contemporaneous reporting or filming of a protest amounted to an interference with Article 10 rights. It was further argued that the legislation itself, with its inadequate safeguards, might well have an intimidatory and chilling effect on the exercise of those rights in the form of peaceful protest and that this was precisely the position in the case of the first applicant. 89. The Government argued that neither the existence of the powers to stop and search nor the exercise of those powers in the particular circumstances of the applicants'case constituted an interference with their Article 10 or 11 rights. 90. In the light of its above conclusion that there has been a violation of Article 8, the Court does not consider it necessary to examine the applicants'remaining complaints under the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 91. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 92. The applicants submitted that they had felt harassed and intimidated by the police actions and that it would be appropriate for the Court to award compensation of GBP 500 each in respect of non-pecuniary damage. 93. The Government submitted that, in view of the short duration of the stop and search, no monetary compensation should be awarded. 94. The Court agrees with the Government that the finding of a violation constitutes sufficient just satisfaction in the circumstances of the present case. B. Costs and expenses 95. The applicants also claimed GBP 40, 652.06, including value-added tax (VAT), for the costs and expenses incurred before the Court. These included GBP 8,178.92 costs of Liberty (charging at GBP 210 per hour for principal lawyers and GBP 111 per hour for a trainee solicitor) together with the fees of three counsel totalling GBP 32,473.14 including VAT. 96. The Government submitted that the hourly rates charged by the applicants'representatives and the number of hours claimed for were excessive, particularly since the issues had already been litigated in detail before the domestic courts. 97. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and awards made in comparable cases against the United Kingdom (see, for example, S. and Marper, cited above), the Court considers it reasonable to award the sum of EUR 35,000 covering costs for the proceedings before the Court, less EUR 1,1 50 already received by way of legal aid. C. Default interest 98. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It considered that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They were not, therefore, “in accordance with the law”. |
447 | Medical assistance for prisoners with a physical illness | II. RELEVANT DOMESTIC LAW AND PRACTICE 83. The Rules on Medical and Sanitary Care in Detention Centres and Penitentiaries, approved by Decree no. 3/6 of 18 January 2000 of the State Department for the Enforcement of Sentences, stipulate that medical assistance to HIV-infected persons is to be provided on the same basis as to everybody else (paragraph 4.3.4). The Rules also contain recommendations stating that accessible, informative and supportive counselling should be available before and after HIV-testing (annex 28 to paragraph 4.3.4). 84. The relevant provisions of Decree No 186/607 of 15 November 2005 of the Ministry of Health and the State Department for the Enforcement of Sentences on the Antiretroviral Treatment of Persons with HIV/Aids Detained in Prisons and Pre-Trial Detention Centres are summarised in the case of Yakovenko v. Ukraine (no. 15825/06, §§ 49-52, 25 October 2007). 85. Article 18 of the Pre-trial Detention Act (1993) sets out rules governing the use of security measures, including the use of handcuffs. Prison officers are entitled to use force and special equipment, including unarmed combat, handcuffs and truncheons, with a view to suppressing physical resistance, violence, outrage ( безчинства ) and opposition to the lawful directions of the authorities of the detention facility, when other means of achieving a legitimate objective have proved ineffective. The type of security measure and the time and manner of its use depend on the particular circumstances of the case and the personality of the detainee. 86. Article 140 § 1 of the Criminal Code penalises medical negligence which has led to grave consequences for the patient by “debarring from the holding of certain offices or pursuing certain activities” for a term of up to five years, or by correctional work for up to two years, or by restriction or deprivation of liberty for the same term. III. RELEVANT INTERNATIONAL MATERIALS 87. The relevant extracts from the third General Report [CPT/Inf (93) 12] of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: “ a. Access to a doctor ... 35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ... Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ... 37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.” b. Equivalence of care 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). 39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.” 88. The guidelines of the World Health Organisation (“WHO”) on antiretroviral therapy for HIV infection in adults and adolescents can be found in the judgment in the case of Kozhokar v. Russia, no. 33099/08, §§ 77-79, 16 December 2010. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT 89. Both the first applicant, while still alive, and the second applicant, in maintaining her son’s application and joining the case on her own behalf after his death, complained that the State had failed to protect his health, physical well-being and life, contrary to Articles 2 and 3 of the Convention. The second applicant further complained under Article 3 of the Convention about her son’s handcuffing in hospital. Lastly, she complained that the domestic investigation into his death had been ineffective. 90. Articles 2 and 3 of the Convention, relied on by the applicants, read as follows in so far as relevant: Article 2. “1. Everyone’s right to life shall be protected by law.” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. Victim status 91. The Court notes at the outset that the second applicant may claim to be a victim within the meaning of Article 34 of the Convention of the violations alleged by and on behalf of her late son under Articles 2 and 3 of the Convention (see Renolde v. France, no. 5608/05, § 69, 16 October 2008). 2. Exhaustion of domestic remedies as regards the medical care provided to the first applicant and his death 92. The Government argued that the above complaints were premature. They noted, in particular, that the criminal investigation (instituted on 27 December 2010) regarding the medical assistance provided to the first applicant by the Central Hospital’s doctors had not yet been completed. The Government further observed that – as of the date of their observations – the second applicant had not challenged the decision of the Bakhchysaray Prosecutor of 29 April 2011 refusing to institute criminal proceedings against the staff of the ITT and the SIZO in connection with the medical care provided to the first applicant during his detention in those facilities. 93. The second applicant submitted that after the domestic authorities had dismissed her son’s numerous requests for release and for specialised medical treatment, which he had raised in an attempt to save his life, there remained no effective domestic remedies for her to exhaust after his death. She further expressed the view that, in any event, the domestic investigation into the circumstances of the first applicant’s death had been slow and ineffective. The second applicant therefore considered it pointless to await its completion. 94. As regards the rule of exhaustion of domestic remedies, the Court emphasises that it must be applied with some degree of flexibility and without excessive formalism. The Court has already held on a number of occasions that this rule is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case (see Akdivar and Others v. Turkey [GC], 16 September 1996, § 69, Reports of Judgments and Decisions 1996 ‑ IV, and Aksoy v. Turkey, 18 December 1996, §§ 53-54, Reports 1996-VI). The Court looks, in particular, whether the applicant did everything that could reasonably be expected in order to exhaust available domestic remedies (see Merit v. Ukraine, no. 66561/01, § 58, 30 March 2004). 95. The Court observes that the Government’s objection in the present case raises issues which are inextricably linked to the question of the effectiveness of the domestic investigation into the first applicant’s death. Given the second applicant’s complaint about the alleged ineffectiveness of the investigation in question, the Court would normally join this objection to the merits of the aforementioned complaint (see, for example, Matushevskyy and Matushevska v. Ukraine, no. 59461/08, § 66, 23 June 2011). However, the particular circumstances of this case call for a different approach. 96. It is noteworthy that, in assessing the effectiveness of a domestic remedy for a complaint under Articles 2 and 3 of the Convention with regard to lack of sufficient care for an applicant suffering from an illness in detention, the Court considers that a decisive question is whether that remedy can bring direct and timely relief. Such a remedy can, in principle, be both preventive and compensatory in nature. Where the applicant has already resorted to either of the available and relevant remedies, considering it to be the most appropriate course of action in his or her particular situation, the applicant should not then be reproached for not having pursued an alternative remedial course of action (see, mutatis mutandis, Melnik v. Ukraine, no. 72286/01, §§ 68 and 70, 28 March 2006). 97. The Court observes that the parties are in dispute as to when the authorities became aware of the first applicant’s HIV status. It will deal with this particular issue later, when assessing the merits of the case. In order to establish whether the rule of exhaustion of domestic remedies has been respected, it suffices for the Court to note the numerous requests for release on health grounds lodged by the first applicant in June 2008 with the court dealing with his criminal case. Those requests, in the Court’s view, clearly voiced the first applicant’s fears for his life (see and compare with Dybeku v. Albania, no. 41153/06, § 28, 18 December 2007, and Makharadze and Sikharulidze v. Georgia, no. 35254/07, § 54, 22 November 2011). 98. In other words, at the most pertinent time, when the first applicant was still alive and could personally care for his well-being, he did everything reasonable, at least from early June 2008 onwards, to alert the relevant authorities to his progressing HIV infection and the concomitant diseases, seeking preventive remedial action for the grievances set out in the present application. In such circumstances, it would be wholly inappropriate, from the point of Article 35 § 1 of the Convention, to reproach the second applicant for not having retrospectively pursued any compensatory remedy by seeking completion of the criminal investigation and getting redress for the State’s failure to protect her son’s health and life (see Makharadze and Sikharulidze v. Georgia, cited above, § 55). 99. The Court therefore considers that the first applicant sufficiently pursued a preventive domestic remedy for the exhaustion requirement to be complied with. 100. Accordingly, the Court dismisses this objection by the Government without joining it to the merits of the complaint about the effectiveness of the domestic investigation into the first applicant’s medical treatment and death. 3. Exhaustion of domestic remedies as regards the first applicant’s handcuffing in hospital 101. The Government submitted that the applicants could have, but failed to, complain about the first applicant’s handcuffing to the prosecuting authorities or courts. The Government therefore expressed the view that they could not be regarded as having exhausted the available domestic remedies before bringing this complaint to the Court, as required by Article 35 § 1 of the Convention. 102. The second applicant disagreed. 103. The Court notes that, as can be seen from the case-file materials, the second applicant did complain about her son’s handcuffing to the Chief of the Bakhchysaray Police Department and to the Bakhchysaray Prosecutor (see paragraph 49 above). The first applicant’s lawyer also raised this issue before the domestic authorities (see paragraph 51 above). These complaints, however, produced no effect. 104. The Court therefore concludes that the applicants took sufficient steps at the domestic level to bring this complaint to the attention of the national authorities (see Sylenok and Tekhnoservis-Plus v. Ukraine, no. 20988/02, § 76, 9 December 2010). Moreover, it appears that the first applicant’s handcuffing in hospital constituted a practice officially condoned or tolerated by the guards’ supervisors (see, for a similar situation, Okhrimenko v. Ukraine, no. 53896/07, § 94, 15 October 2009, and, for an example to the contrary, Tsygoniy v. Ukraine, no. 19213/04, § 51, 24 November 2011). 105. Accordingly, the Court also rejects this objection by the Government. 4. Otherwise as to admissibility 106. The Court considers that the above complaints (see paragraph 89 above) are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Scope of the issues for consideration 107. The Court notes that in previous cases where a death occurred in detention and the deceased’s relatives complained about the lack or inadequacy of medical care prior to the death, relying on both Articles 2 and 3 of the Convention, it examined that complaint primarily from the standpoint of Article 2 (see Tarariyeva v. Russia, no. 4353/03, § 68, ECHR 2006 ‑ XV (extracts)), and Kats and Others v. Ukraine, no. 29971/04, § 131, 18 December 2008). 108. In cases where the applicants referred to both the aforementioned provisions in respect of allegedly inadequate medical assistance available to them in detention, but where there was no death, the Court examined the complaint under Article 3 of the Convention (see, for example, A.B. v. Russia, no. 1439/06, § 114, 14 October 2010). 109. The present case is, however, different from any of the situations described above. The Court notes that the first applicant died two weeks after his release from detention following specialised treatment in a civil hospital. 110. The Court observes that the applicants’ complaints, which they raised with reference to both Articles 2 and 3 of the Convention, concern several specific issues, namely (a) whether adequate medical assistance was available to the first applicant during his detention in the ITT and the SIZO; (b) whether the Central Hospital’s doctors provided him with medical care which was prompt and which adequately addressed his deteriorating state of health; (c) whether the first applicant’s handcuffing in hospital amounted to inhuman or degrading treatment; (d) whether the authorities can be regarded as having discharged their obligation to protect the first applicant’s life; and (e) whether there was an effective domestic investigation into the circumstances of his death. 111. In view of the complex issues to be considered, the Court finds that it must assess each one of them separately: the three first-mentioned ones – in the context of Article 3 of the Convention; and, given the alleged causal link and contributory nature to the first applicant’s death, also assess them jointly in considering the complaints under Article 2 of the Convention (see Bekirski v. Bulgaria, no. 71420/01, § 124, 2 September 2010). 2. Medical care in the detention facilities (a) The parties’ submissions 112. The first applicant complained that the administration of the ITT and the SIZO had failed to respond in a timely and adequate manner to the deterioration of his health in detention. He submitted that, starting from early March 2008 his health sharply deteriorated. Namely, he allegedly had constant fever of 39-40ºC and could not eat because of serious digestion disorders. Instead of ensuring that he received comprehensive medical examinations and treatment, the administration of the detention facilities had allegedly confined itself to calling an ambulance on several occasions. 113. Referring to the special medical monitoring of persons with HIV infection, the second applicant submitted that the health-care establishments, law-enforcement authorities and the Department for Enforcement of Sentences must have been aware of the HIV-positive status of her son. Furthermore, she noted that he had informed the investigator of his health condition immediately after his placement in police custody on 20 November 2007. 114. The second applicant emphasised that at the time of his placement in detention in November 2007 her son had been in good health. His HIV ‑ positive status had not in fact manifested itself then as having any further negative consequences for his health. Accordingly, the fact that the first applicant had not registered for medical monitoring at the Aids Centre could not be regarded as having absolved the authorities who were holding him in detention from their duty to provide him with medical treatment once it became necessary with the deterioration of his health in March 2008. 115. The Government contested the above arguments. They noted that the first applicant had never himself sought medical monitoring or any assistance in respect of his HIV infection while at liberty. Moreover, during his detention he had concealed his HIV status from the authorities. The medical staff at the detention facilities could not therefore be reproached for not applying a coherent strategy to the first applicant’s treatment in respect of the HIV infection, as they did not know about it. (b) The Court’s assessment 116. The Court notes the dispute between the parties as to when the administration of the detention facilities in which the first applicant was detained became aware of his HIV status. Consequently, the Court will begin its examination of the applicants’ complaint regarding the alleged lack of timely and adequate medical care available to the first applicant in those detention facilities by establishing this pertinent fact. (i) Establishment of facts 117. In the absence of the applicants’ allegations or any other indication to the contrary, the Court considers it an established fact that the first applicant himself became aware of his HIV-positive status in February 2006 (see paragraphs 8, 21 and 59 above). 118. It is also common ground between the parties that he had not sought any medical treatment in that regard before he was detained. 119. As further agreed by both parties, the first applicant felt well at the time of his placement in detention on 20 November 2007. 120. The question arises whether and when thereafter he informed the administration of the ITT and/or the SIZO of his HIV-positive status. 121. According to the second applicant, her son immediately informed the investigator of his condition. The Court notes, however, that this statement is not supported by any evidence. To the contrary, it appears to be refuted by the first applicant’s own written statement of 20 June 2008, in which he admitted that he had concealed his HIV status from the authorities “for understandable reasons” (see paragraph 36 above). 122. Neither does the Court see any indication in the case file that the authorities might have received this information from any other source like, for example, from the second applicant who had apparently herself remained unaware of her son’s condition until early June 2008 (see paragraph 21 above, and, for the case-law to compare, see Kats and Others v. Ukraine, cited above, §§ 33 and 106). 123. Furthermore, the Court does not lose sight of the records of the first applicant’s medical examinations of 31 May and 3 June 2008, from which it can infer that the first applicant, surprisingly, remained silent about his HIV status even before the doctors who examined him. 124. Lastly, given the confidentiality requirements inherent in the medical monitoring of persons with the HIV-positive status, the Court dismisses the second applicant’s argument that the authorities must have been aware her son was HIV-positive merely because the Aids Centre had earlier diagnosed him as such. 125. In sum, the Court is inclined to agree with the Government’s account of the events, according to which the first applicant did not disclose his HIV status to the authorities. The Court therefore accepts that the authorities became aware of his HIV infection only on 5 June 2008, when he was diagnosed with that infection after an examination in the Central Hospital (see paragraph 22 above). (ii) Examination of the complaint 126. The Court emphasises that Article 3 of the Convention imposes an obligation on the State to ensure, given the practical demands of imprisonment, that the health and well-being of a prisoner are adequately secured by, among other things, providing him with the required medical assistance (see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000 ‑ XI). 127. In order to establish whether an applicant received the requisite medical assistance while in detention, it is crucial to determine whether the State authorities provided him with the minimum scope of medical supervision for the timely diagnosis and treatment of his illness (see Popov v. Russia, no. 26853/04, § 211, 13 July 2006, and Mechenkov v. Russia, no. 35421/05, § 102, 7 February 2008). 128. In other words, the Court must determine whether during his detention an applicant needed regular medical care, whether he was deprived of it as he claimed, and if so whether this amounted to inhuman or degrading treatment contrary to Article 3 of the Convention (see Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004, and Sarban v. Moldova, no. 3456/05, § 78, 4 October 2005). 129. One of the important factors for such an assessment is a sharp deterioration in a person’s state of health in detention facilities, which inevitably casts doubts as regards the adequacy of medical care available therein (see Farbtuhs v. Latvia, cited above, § 57, and Khudobin v. Russia, no. 59696/00, § 84, ECHR 2006 ‑ XII (extracts)). 130. In establishing the scope of the medical supervision required and provided in each particular case, the Court must have regard to the medical documents submitted by the parties (see Popov v. Russia, cited above, ibid.). 131. The Court reiterates in this connection that distribution of the burden of proof is intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (for the principle-setting case-law see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII; and, for the application of this principle in the context of complaints on inadequacy of medical care in detention, see Štrucl and others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, § 65, 20 October 2011). 132. The Court notes that information about conditions of detention, including the issue of medical care, falls within the knowledge of the domestic authorities. Accordingly, applicants might experience difficulties in procuring evidence to substantiate a complaint in that connection (see Vladimir Vasilyev v. Russia, no. 28370/05, § 66, 10 January 2012). What is expected from applicants in such cases is to submit at least a detailed account of the facts complained of (see Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010). The burden of proof is then shifted to the Government to provide explanations and supporting documents. 133. Thus, an ample medical file proving constant medical supervision and adequate medical care might refute an applicant’s view regarding the medical care at his disposal (see Pitalev v. Russia, no. 34393/03, § 55, 30 July 2009). Conversely, the Government’s failure to provide pertinent medical documents casts doubts as regards the availability of adequate medical supervision of and assistance to the applicant in detention (see, mutatis mutandis, Petukhov v. Ukraine, no. 43374/02, § 96, 21 October 2010). 134. Turning to the present case, the Court notes that the applicants made quite specific submissions regarding the deterioration of the first applicant’s health from March 2008. They further alleged that the medical response on the part of the detention facilities had been limited to sporadic ambulance calls (see paragraphs 17 and 112 above). 135. It is true that they did not submit any documentary evidence in support of those allegations. At the same time the Court does not lose sight of the second applicant’s efforts to collect such evidence. Thus, in the course of the domestic investigation into the death of her son she sought access to and examination of his complete medical file from the detention facilities. That request was never granted and this documentation was not made available to the second applicant or to the domestic prosecution authorities (see paragraphs 63 and 81 above). 136. Accordingly, it was for the Government to submit the aforementioned medical file detailing the first applicant’s actual medical needs during his detention and the medical response to them. 137. The Court notes, however, that not a single medical document was submitted to it by the Government regarding the first applicant’s detention between February and May 2008. 138. In such circumstances the Court finds itself in a position to infer from the Government’s failure to submit copies of any relevant medical documents that the first applicant did not receive adequate medical assistance for his deteriorating health in the ITT and the SIZO, even assuming that he had concealed his HIV status from the authorities (see, mutatis mutandis, Mechenkov v. Russia, cited above, § 110). 139. Accordingly, there has been a violation of Article 3 of the Convention in this regard. 3. Medical assistance in the Central Hospital (a) The parties’ submissions 140. The second applicant submitted that even after her son had been sent for examination to the Central Hospital (a civil health-care establishment), its doctors unjustifiably delayed his hospitalisation and specialised treatment, and this irreversibly undermined his prospects of recovery. 141. The Government disagreed. Referring to the case of Okhrimenko v. Ukraine (cited above, § 71), they contended that the Court was not in a position to speculate on the adequacy of medical treatment provided by civil doctors. (b) The Court’s assessment 142. The Court notes that the hospital in question was a public institution, the acts and omissions of its medical staff being therefore capable of engaging the responsibility of the respondent State under the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004 ‑ II). 143. This is, in any event, not crucial as at the time the first applicant remained in detention and thus under the full control of the authorities, which were obliged to account for his health and to provide him with adequate medical care. 144. The Court agrees with the Government that it is not its task to assess the medical treatment provided by civil doctors. 145. At the same time, it notes that the domestic authorities themselves acknowledged that the medical assistance provided to the first applicant by the Central Hospital’s doctors in June 2008 could not be regarded as timely and adequate. Specifically, the Crimea Bureau for Forensic Medical Examinations stated in its report of 26 November 2010 that at least on two occasions, on 5 and 18 June 2008, the Central Hospital’s doctors underestimated the seriousness of the first applicant’s condition and denied him the urgent hospitalisation which he required (see paragraphs 69, 70-72 and 74 above, and, for the case-law to compare, see Geppa v. Russia, no. 8532/06, § 82, 3 February 2011). 146. The Court has no reasons to question those findings. 147. It therefore concludes that there has been a violation of Article 3 of the Convention regarding this particular aspect as well. 4. Handcuffing in hospital (a) The parties’ submissions 148. The second applicant complained that her son had been handcuffed to his bed in the hospital round-the-clock without reason, which had exacerbated his suffering. 149. The Government submitted, with reference to the letter from the Ministry of Health of 23 October 2009 (see paragraph 44 above), that the first applicant had only been handcuffed on the occasions he was escorted outside his hospital room and during any visits to him. They therefore considered that this security measure had been applied reasonably. (b) The Court’s assessment 150. The Court notes that the second applicant’s allegation about the handcuffing of her son during his treatment in the Central Hospital from 20 to 26 June 2008 is supported by the photos submitted by her (see paragraph 35 above). 151. As to his stay in Hospital no. 7 from 26 June to 18 July 2008, it appears from the letter of the Ministry of Health of 23 October 2009, cited by the Government, that according to the hospital management the first applicant was handcuffed during that period too. This implies, in the Court’s opinion, handcuffing for most of the time, if not all the time, rather than on an occasional basis, as the Government interpreted it to mean. 152. The Court further observes that although the Chief of the Bakhchysaray Police – to whom the second applicant complained about her son’s handcuffing – dismissed her complaint on 15 July 2008, referring to the first applicant’s imminent release, he did not deny in principle that handcuffing had been applied (see paragraph 50 above). 153. In sum, the Court considers it to be sufficiently established by the evidence at hand that the first applicant was subjected to continuous handcuffing in hospital from 20 June to 18 July 2008. 154. It notes that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, the danger of the person’s absconding or causing injury or damage (see Raninen v. Finland, 16 December 1997, § 56, Reports 1997 ‑ VIII, and Henaf v. France, no. 65436/01, §§ 50-53, ECHR 2003 ‑ XI). 155. In the present case there is no indication that the first applicant ever behaved violently or attempted to escape. Furthermore, it is not disputed by the parties that he was constantly guarded by police officers while in hospital. Moreover, he suffered from severe immunosuppression caused by his HIV status, as well as a number of concurrent illnesses (see paragraph 43 above). No special medical qualifications were required in order to understand how weak and ill he was. Thus, the prosecutor pursuing criminal charges against the first applicant acknowledged on 24 June 2008 that he was in a “critical health condition” (see paragraph 39 above). Nonetheless, the police still considered it necessary to keep him handcuffed in hospital. The handcuffing continued even after the Chief Doctor of Hospital no. 7 indicated to the Bakhchysaray Police Department on 2 July 2008 that the first applicant was seriously ill and that he needed to be unrestricted in his movements. In total, the first applicant remained handcuffed in hospital for twenty-eight days. 156. The Court considers that this treatment could not be justified by security reasons and, given the first applicant’s poor state of health, is to be considered inhuman and degrading (see Tarariyeva v. Russia, cited above, §§ 110 and 111). 157. There has therefore been a violation of Article 3 of the Convention in this regard too. 5. The State’s obligation to protect the first applicant’s life (a) The second applicant’s submissions 158. The second applicant maintained that her son could have recovered and remained alive had the authorities provided him with proper medical treatment in good time. She noted that, while HIV/Aids remained incurable, there were ways to enhance the life of people with the disease. According to her, her son was deprived of any such possibility owing to the fact that he was detained and was therefore fully dependant on the authorities, which, in her view, showed complete disregard for his life. 159. In addition to her arguments regarding the lack of timely and adequate medical assistance available to the first applicant in detention, the second applicant also referred to his continued detention after the pronouncement of the judgment in his case on 4 July 2008, even though a custodial sentence had not been imposed. She considered that by that measure alone the authorities had put her son in a life-threatening situation. 160. The second applicant underlined that she was not complaining about the unlawfulness of her son’s detention from the standpoint of Article 5 of the Convention, but that she was referring to it as an argument in support of her claim that the authorities had failed to protect her son’s life. 161. She further noted that the first applicant’s behaviour before his placement in detention in December 2007 was of no relevance for the fatal outcome of his disease in August 2008, as he had felt well while he had remained at liberty and had not required any particular medical treatment at that stage. It was in detention that his health sharply deteriorated, but remained untreated, which led to his death. (b) The Government’s submissions 162. The Government denied any responsibility on the part of the respondent State for the first applicant’s death. They imputed it to his own behaviour. Firstly, the Government observed that the first applicant had not himself sought any medical assistance for about two years prior to his placement in detention. Secondly, they emphasised that he had concealed his HIV-positive status from the authorities during his detention. 163. Reiterating the findings of the Ministry of Health’s commission of 20 March 2009, the Government explained the deterioration of the first applicant’s health and the ensuing complications by his delayed application for medical care after having tested HIV-positive, as well as by the severity of the main disease (see paragraph 59 above). (c) The Court’s assessment 164. The Court emphasises that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-147, Series A no. 324). 165. For a positive obligation of a State under Article 2 of the Convention to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998 ‑ VIII). 166. Turning to the circumstances of the present case, the Court notes that the first applicant died two weeks after his release from detention and a day after his voluntary discharge from a civil hospital following about a month and a half of specialised in-patient treatment (see paragraphs 42, 52 and 55 above). The Court also notes that his death was caused by the HIV infection contracted at least two years prior to his placement in detention, if not earlier, and that he did not disclose his HIV status to the authorities (see paragraphs 7 and 125 above). 167. It is not the Court’s task to rule on matters lying exclusively within the field of expertise of medical specialists and establish whether the first applicant’s disease was treatable and whether, accordingly, his death could have been averted (see, mutatis mutandis, Kozhokar v. Russia, cited above, § 108). Instead, in order to determine whether Article 2 of the Convention has been complied with, the Court will focus on determining whether the domestic authorities did everything which could reasonably have been expected of them under the circumstances to protect the first applicant’s life. 168. Given that the first applicant did not disclose his HIV-positive status, the Court considers that the authorities became aware of it once that diagnosis was clinically established – that is, on 5 June 2008 (see paragraph 125 above). 169. As to the earlier deterioration of his health in the detention facilities and the lack of prompt and adequate medical care available to him there, in respect of which the Court has found a violation of Article 3 of the Convention (see paragraphs 126-139 above), the Court considers that it is not in a position to examine these issues from the standpoint of Article 2 also, for the following reasons. Firstly, it does not appear that at that stage the health of the first applicant had deteriorated to such an extent that it could be considered life-threatening, and, secondly, the administration of the detention facilities were not aware of his HIV status and the inherent risks. 170. At the same time, the Court notes that on 5 June 2008 the Central Hospital’s doctors diagnosed the first applicant with HIV infection at the fourth clinical stage, with several concomitant diseases, such as pneumocystis pneumonia, oropharynx-esophagus candidiosis and an ulcer (see paragraph 22 above). As was later established by forensic medical experts, the diagnosis of neumocystis pneumonia alone warranted the first applicant’s urgent hospitalisation (see paragraph 72 above). 171. There were therefore, from 5 June 2008 onwards, two key factors in place for the State’s positive obligation under Article 2 of the Convention to come into play: firstly, the seriousness of the first applicant’s health condition and, secondly, the knowledge of the authorities about it. 172. Nonetheless, the seriousness of his condition was underestimated and, as a result, his hospitalisation – already urgently required on 5 June 2008 if not earlier – was delayed until 20 June 2008 (see paragraphs 145 ‑ 146 above). 173. The Court has already found a violation of Article 3 of the Convention in that regard (see paragraph 147 above). It further notes that, according to its case-law, a failure on the part of the authorities to monitor a detainee’s condition or provide a detainee with medical care in a life ‑ threatening situation may lead to a breach of Article 2 (see Douglas ‑ Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002, and, as a more recent reference, Alimuçaj v. Albania, no. 20134/05, § 130, 7 February 2012). 174. Accordingly, it will take the aforementioned omissions into account in making its conclusions under Article 2 of the Convention too. 175. The Court next notes that the Bakhchysaray Court in charge of the first applicant’s trial turned a blind eye to the extreme gravity of his condition even though this had been acknowledged even by the prosecution. Thus, on 24 June 2008 the prosecutor informed the court that there were no objections to the first applicant’s release and indicated that it was necessary to deal with his request for release promptly on account of his “critical condition”. However, the first applicant continued to be deprived of his liberty, while in Hospital no. 7, even after the pronouncement of the judgment of 4 July 2008, which imposed a fine only and not a custodial sentence. He was released only on 18 July 2008 (see paragraphs 47 and 52 above). 176. There are three particular elements to be considered in relation to the compatibility of an applicant’s health with his continued detention: (a) the medical condition of the detainee, (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of the applicant (see Mouisel v. France, no. 67263/01, §§ 40-42, ECHR 2002 ‑ IX; Melnik v. Ukraine, cited above, § 94; and Rivière v. France, no. 33834/03, § 63, 11 July 2006). 177. The Court notes that the first applicant’s health was found to be more and more a cause for concern and to be increasingly incompatible with detention (see and compare Dzieciak v. Poland, no. 77766/01, §§ 100-101, 9 December 2008, in which the Court examined, in particular, the issue of the applicant’s continuous detention from the standpoint of the State’s obligation to protect his life). Furthermore, the first applicant posed no danger to the public and his detention appears to have been not only “inadvisable”, but particularly cruel in the circumstances (see, for a converse example, Ceku v. Germany (dec.), no. 41559/06, 13 March 2007). 178. The Court does not lose sight of the fact that at the time in question the first applicant was being held not in a detention facility cell but in a civil hospital where he was undergoing specialised in-patient treatment. 179. On the surface, that might appear to counterbalance the above considerations against his detention. However, the Court considers that this is not so given, in particular, the first applicant’s continuous handcuffing in hospital amounting in itself, under the circumstances, to his inhuman and degrading treatment (see paragraphs 150-157 above). 180. All in all, even if some of the above-mentioned deficiencies would not alone have been sufficient for a finding of inadequate discharge by the State of its positive obligation to protect the first applicant’s health and life, the Court considers that their coexistence and cumulative effect are more than enough in this regard. 181. Whether or not the authorities’ efforts could in principle have averted the fatal outcome in the present case is not decisive for this conclusion. What matters for the Court is whether they did everything reasonably possible in the circumstances, in good faith and in a timely manner, to try to save the first applicant’s life (see, mutatis mutandis, Makharadze and Sikharulidze v. Georgia, cited above, § 74). 182. The Court considers that this is not the case given, in particular, the fact that the first applicant was denied urgent hospitalisation, which he required, for over two weeks; that he remained detained without any justification and while in a critical health condition; and that he was subjected, contrary to doctors’ recommendations, to continuous handcuffing which further exacerbated his health condition. 183. It follows that there has been a violation of Article 2 of the Convention on account of the respondent State’s failure to protect the first applicant’s life. 6. Domestic investigation regarding the first applicant’s medical treatment and death (a) The parties’ submissions 184. The second applicant maintained that there had been no effective domestic investigation into the death of her son. She noted, in particular, that the investigating authorities had never studied the complete medical file of the first applicant from the detention facilities. Nor had they questioned all the medical personnel involved. She also pointed out that the decisions to terminate the investigation had been quashed as premature or superficial on several occasions. At the same time, the shortcomings indicated had never been rectified. She therefore contended that the authorities had sought ways to deny any responsibility for the death of her son instead of making genuine efforts to establish its reasons and punish those responsible. 185. The Government maintained that the domestic investigation into the first applicant’s death had been adequate. (b) The Court’s assessment 186. The Court reiterates that where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 of the Convention entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 91, ECHR 2004 ‑ XII). 187. The system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. The competent authorities must act with exemplary diligence and promptness, and must initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. The requirement of public scrutiny is also relevant in this context (see, mutatis mutandis, Kats and Others v. Ukraine, cited above, § 116). 188. In the present case, the second applicant claimed that the death of her son had resulted from the lack of prompt and adequate medical care provided to him by the ITT and the SIZO personnel, as well as by the doctors of the Central Hospital. 189. The Court notes that the first applicant’s health seriously deteriorated in detention and that the applicants raised the complaints regarding the medical assistance provided to him, at least before the administration of the detention facilities and the management of the Central Hospital, prior to the first applicant’s death. Thereafter, those grievances were further brought to the attention of prosecuting authorities (see paragraphs 33, 45 and 56 above). 190. The Court notes that the investigation was closed and reopened several times and has lasted for over three and a half years (calculated from August 2008 – see paragraphs 55-56). As a result, on 27 December 2010 criminal proceedings were instituted in respect of the Central Hospital’s doctors. There is no information in the case file as regards the progress of these criminal proceedings. As to the liability of the detention facilities’ staff, the investigation was re-opened on 13 March 2012 and is ongoing. 191. The Court cannot overlook the failure of the investigating authorities to obtain the first applicant’s complete medical file from the detention facilities where he had been detained, even though the second applicant insisted on that pertinent measure and, moreover, the Crimea Court of Appeal also found that it was necessary in its ruling of 13 October 2009 (see paragraphs 63 and 66 above). This omission was also noted by the Bakhchysaray Court in its ruling of 13 March 2012. Furthermore, the Bakhchysaray Court pointed out that the SIZO personnel in charge of handling the first applicant’s health-related complaints had not even been identified (see paragraph 81 above). In the Court’s view, the failure to take such a basic investigative step, which would have been expected at the very outset of the investigation had it been genuinely aimed at establishing the truth, discloses its flagrant deficiency. 192. It follows that the respondent State failed to account sufficiently for the deterioration of the first applicant’s health and his subsequent death. 193. This is a serious omission as, apart from concern for respect of the rights inherent in Article 2 of the Convention in each individual case, important public interests are at stake. Notably, the knowledge of the facts and of possible errors committed in the course of medical care are essential to enable the institutions and medical staff concerned to remedy potential deficiencies and prevent similar errors (see Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006). 194. There has accordingly been a violation of Article 2 of the Convention under its procedural limb. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE SECOND APPLICANT 195. The second applicant additionally complained that, as a result of the denial of prompt and adequate medical care to her son, his subsequent death and the flawed domestic investigation into it, she had endured mental suffering in breach of Article 3 of the Convention. The text of this provision is provided in paragraph 90 above. A. Admissibility 196. The Court considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. Neither is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 197. The second applicant submitted that, during several months, she had witnessed her child dying in detention, at the age of twenty-seven, without adequate medical care and subjected to permanent handcuffing. She emphasised that, while being aware of the proximate end of his life, she had found herself in a state of complete helplessness and despair, being unable not only to save his life, but even to alleviate his suffering. The second applicant referred to the cynical and indifferent attitude of the domestic authorities, which had manifested itself, in particular, in the continuous detention of her son even after he had been sentenced to a fine only and after the prosecution had acknowledged his critical health condition and had consented to his release. They had showed similar indifference, in her view, by their formalistic approach to the investigation into the circumstances of her son’s death. 198. Maintaining their assertion as to the absence of any breach of Article 3 of the Convention in respect of the first applicant, the Government considered that the second applicant’s complaint under this provision about her own mental suffering was devoid of any grounds. 2. The Court’s assessment 199. The Court has never questioned in its case-law the profound psychological impact of a serious human rights’ violation on the victim’s family members. However, in order for a separate violation of Article 3 of the Convention to be found in respect of the victim’s relatives, there should be special factors in place giving their suffering a dimension and character distinct from emotional distress inevitably stemming from the aforementioned violation itself. Relevant elements include the proximity of the family tie and the way the authorities responded to the relative’s enquiries (see, for example, Çakıcı v. Turkey, no. 23657/94, § 98, 8 July 1999, where this principle was applied in the context of enforced disappearance; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 61, 12 October 2006, where the Court further relied on this principle in consideration of a mother’s complaint about her suffering on account of her five-year old daughter’s detention in another country; and M.P. and Others v. Bulgaria, no. 22457/08, §§ 122-124, 15 November 2011, where the respective complaint concerned suffering of the relatives of an abused child). 200. In the cited cases the Court attached weight to the parent-child bond. It also held that the essence of such a violation lay in the authorities’ reactions and attitudes to the situation when it was brought to their attention. The Court further emphasised that it was especially in respect of this latter factor that a parent could claim directly to be a victim of the authorities’ conduct (ibid.). 201. Another factor leading the Court to find a violation of Article 3 of the Convention, in particular, in respect of relatives of a victim of an enforced disappearance, was the continuous nature of their psychological suffering (see, for example, Imakayeva v. Russia, no. 7615/02, § 166, ECHR 2006‑XIII (extracts); and Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006‑XIII (extracts)). 202. In sum, in such circumstances, Article 3 enjoins the authorities to react to the plight of the victim’s relatives in an appropriate and humane way. On the other hand, in cases of persons who have been killed by the authorities in violation of Article 2, the Court has held that the application of Article 3 is usually not extended to the relatives on account of the instantaneous nature of the incident causing the death in question (see Yasin Ateş v. Turkey, no. 30949/96, § 135, 31 May 2005; Udayeva and Yusupova v. Russia, no. 36542/05, § 82, 21 December 2010; Khashuyeva v. Russia, no. 25553/07, § 154, 19 July 2011; and Inderbiyeva v. Russia, no. 56765/08, § 110, 27 March 2012). 203. Turning to the present case, the Court notes that, as soon as the second applicant became aware of the disease of her son, who was in detention, she took every effort to save his life, appealing to the hospitals, prosecution authorities and courts involved. Nonetheless, the first applicant continued to be detained even after the prosecution had agreed to his release given the gravity of his health condition (see paragraphs 39-40 above). Neither was he released after the verdict had been pronounced in his case with the penalty being limited to a fine and not providing for any custodial sentence (see paragraph 47 above). His mother, the second applicant, could only passively witness this in a state of complete helplessness. Furthermore, her complaints about the underestimation of the seriousness of her son’s condition were disregarded, even though later they were found to be well-grounded (see paragraphs 33, 69 and 74 above). The Court does not lose sight either of the second applicant’s fruitless efforts to get the handcuffing of her son’s lifted during his stay in hospital (see paragraphs 49-50 above). Lastly, the Court observes that even after the death of the first applicant, the authorities manifested an equally unacceptable attitude towards the second applicant, in particular, by ignoring her requests to get access to her son’s medical file (see paragraphs 63, 66 and 191 above). 204. Overall, the Court discerns a number of factors in the present case which, taken together, indicate a breach of the second applicant’s rights under Article 3 of the Convention. Namely, it notes: the parent-child bond between her and the first applicant; the activeness of her efforts to save his life or at least to alleviate his suffering; the cynical, indifferent and cruel attitude towards her appeals demonstrated by the authorities both before the first applicant’s death and during its subsequent investigation; the fact that the second applicant had to witness the slow death of her son without being able to help him in any way; and, lastly, the duration of her inherent suffering for about three months. 205. In the light of the foregoing, the Court considers that the second applicant has been a victim of inhuman treatment. 206. There has therefore been a violation of Article 3 of the Convention in respect of the second applicant. III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 207. The applicants complained that the delayed hospitalisation of the first applicant, notwithstanding the interim measure indicated to the Government under Rule 39 of the Rules of Court, had been in breach of Article 34 of the Convention. 208. Article 34 of the Convention reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 209. Rule 39 of the Rules of Court provides: “1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it. 2. Notice of these measures shall be given to the Committee of Ministers. 3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.” A. The parties’ submissions 210. The second applicant maintained that the authorities had failed to comply with the interim measure. 211. The Government disagreed. B. The Court’s assessment 1. General principles 212. Article 34 of the Convention requires Member States not to hinder in any way the effective exercise of an applicant’s right of access to the Court (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 100, ECHR 2005 ‑ I). 213. The obligation in Article 34 not to interfere with an individual’s effective exercise of the right to submit and pursue a complaint before the Court confers upon an applicant a right of a procedural nature – which can be asserted in Convention proceedings – distinguishable from the substantive rights set out under Section I of the Convention or its Protocols (see, for instance, Shamayev and Others v. Georgia and Russia, no. 36378/02, § 470, ECHR 2005 ‑ III). 214. In Mamatkulov and Askarov (cited above, §§ 104, 125 and 128), the Court held that the failure to comply with an interim measure indicated under Rule 39 of the Rules of Court could give rise to a violation of Article 34 of the Convention. 215. In Paladi v. Moldova ([GC], no. 39806/05, 10 March 2009) the Court stated: “87. The Court reiterates that the obligation laid down in Article 34 in fine requires the Contracting States to refrain not only from exerting pressure on applicants, but also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure [...]. It is clear from the purpose of this rule, which is to ensure the effectiveness of the right of individual petition [...], that the intentions or reasons underlying the acts or omissions in question are of little relevance when assessing whether Article 34 of the Convention was complied with ... What matters is whether the situation created as a result of the authorities’ act or omission conforms to Article 34. 88. The same holds true as regards compliance with interim measures as provided for by Rule 39, since such measures are indicated by the Court for the purpose of ensuring the effectiveness of the right of individual petition ... It follows that Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably have been taken in order to comply with the measure indicated by the Court. 89. Furthermore, the Court would stress that where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to preserve and protect the rights and interests of the parties in a dispute before the Court, pending the final decision. It follows from the very nature of interim measures that a decision on whether they should be indicated in a given case will often have to be made within a very short lapse of time, with a view to preventing imminent potential harm from being done. Consequently, the full facts of the case will often remain undetermined until the Court’s judgment on the merits of the complaint to which the measure is related. It is precisely for the purpose of preserving the Court’s ability to render such a judgment after an effective examination of the complaint that such measures are indicated. Until that time, it may be unavoidable for the Court to indicate interim measures on the basis of facts which, despite making a prima facie case in favour of such measures, are subsequently added to or challenged to the point of calling into question the measures’ justification. For the same reasons, the fact that the damage which an interim measure was designed to prevent subsequently turns out not to have occurred despite a State’s failure to act in full compliance with the interim measure is equally irrelevant for the assessment of whether this State has fulfilled its obligations under Article 34. 90. Consequently, it is not open to a Contracting State to substitute its own judgment for that of the Court in verifying whether or not there existed a real risk of immediate and irreparable damage to an applicant at the time when the interim measure was indicated. Neither is it for the domestic authorities to decide on the time-limits for complying with an interim measure or on the extent to which it should be complied with. It is for the Court to verify compliance with the interim measure, while a State which considers that it is in possession of materials capable of convincing the Court to annul the interim measure should inform the Court accordingly (see, mutatis mutandis, Olaechea Cahuas v. Spain, no. 24668/03, § 70, ECHR 2006-X; Tanrıkulu v. Turkey [GC], no. 23763/94, § 131, ECHR 1999-IV; and Orhan v. Turkey, no. 25656/94, § 409, 18 June 2002). 91. The point of departure for verifying whether the respondent State has complied with the measure is the formulation of the interim measure itself (see, mutatis mutandis, the International Court of Justice’s analysis of the formulation of its interim measure and actual compliance with it in LaGrand, ...). The Court will therefore examine whether the respondent State complied with the letter and the spirit of the interim measure indicated to it. 92. In examining a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will therefore not re-examine whether its decision to apply interim measures was correct. It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation.” 2. Application of the above principles to the present case 216. The Court notes that the respondent Government were officially informed of the interim measure under Rule 39 on 17 June 2008 (Tuesday, a working day) by a fax message (see paragraph 29 above). 217. The contents of the interim measure included an instruction to the domestic authorities to transfer the first applicant immediately to a hospital for medical treatment. Despite becoming aware of the interim measure at the latest on the evening of 17 June 2008, it was only on 20 June 2008 that the domestic authorities transferred the first applicant to a hospital. 218. It follows that the interim measure was not complied with for a period of three days. 219. The Court notes that the Government considered this delay reasonable, without referring to any impediments which had prevented their earlier compliance with it. 220. The Court however does not share this view. It explicitly and clearly indicated that the first applicant’s hospitalisation had to be immediate (see paragraph 29 above). It observes that an identically worded interim measure, which it had indicated in the case of Yakovenko v. Ukraine (no. 15825/06, 25 October 2007), had been implemented on the same day (§§ 3 and 22). 221. There appear no objective impediments or difficulties, which might have prevented equally expedient compliance in the present case. 222. The Court emphasises that it did not indicate the necessity of the first applicant’s medical examination, but his “[immediate transfer] to a hospital or other medical institution where he [could] receive the appropriate treatment for his medical condition”. The authorities, however, waited for one day and decided, on 18 June 2008, that no urgent hospitalisation was required. In other words, instead of complying with the indicated interim measure, they decided to re-evaluate its soundness. And, as it was later acknowledged by the domestic authorities themselves, this re-evaluation was erroneous (see paragraphs 74 and 145 above). 223. Accordingly, there was no acceptable explanation for the domestic authorities’ failure to take immediate action to comply with the interim measure (see, and compare with, Grori v. Albania, no. 25336/04, §§ 185 ‑ 195, 7 July 2009). Whether or not the three-day delay in fact caused the damage which the interim measure was designed to prevent, is irrelevant for the Court’s assessment (see Paladi v. Moldova, cited above, § 89). 224. The Court concludes the State failed to meet its obligations under Article 34 of the Convention by not complying promptly with the interim measure indicated by the Court on 17 June 2008. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 225. The second applicant also complained under Article 6 of the Convention about the alleged unfairness of the first applicant’s trial. 226. The Court notes that the second applicant was not a party to the domestic proceedings complained of. Consequently, she cannot claim to be a victim, within the meaning of the Convention, of a violation of her rights guaranteed therein. The Court therefore rejects this complaint as being incompatible ratione personae with the Convention provisions, pursuant Article 35 §§ 3 (a) and 4 of the Convention. 227. Lastly, the second applicant complained about the material conditions of her son’s detention in the ITT and the SIZO. She raised this complaint for the first time in her reply to the Government’s observations. 228. The Court notes that the first applicant’s detention in the conditions complained of ended on 20 June 2008 (see paragraphs 14 and 34 above), whereas the respective complaint was lodged with the Court after September 2009 (see paragraph 4 above), that is, more than six months later (see Novinskiy v. Russia (dec.), no. 11982/02, 6 December 2007, and Malenko v. Ukraine, no. 18660/03, § 40, 19 February 2009). It follows that this complaint was introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 229. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 230. The second applicant claimed 50,000 euros (EUR) for non-pecuniary damage associated with the violations of Articles 2 and 3 of the Convention in respect of the first applicant. She also claimed EUR 10,000 for non-pecuniary damage for the violation of Article 3 of the Convention in respect of herself. 231. The Government contested these claims as unsubstantiated and excessive. They also submitted that, if the Court decided to award a just satisfaction in respect of some violations regarding the first applicant, the second applicant should not automatically receive that award. According to the Government, it ought to be distributed among all the eligible heirs of the first applicant. 232. Taking into account the nature of the violations found and ruling on an equitable basis, the Court considers it appropriate to allow this claim in full. It thus makes the following awards under this heading: EUR 50,000 in respect of the non-pecuniary damage suffered by the first applicant, to be paid to the second applicant in her capacity as his successor in the proceedings before the Court after his death; and EUR 10,000 in respect of the non-pecuniary damage suffered by the second applicant herself, to be paid to her in her personal capacity. B. Costs and expenses 1. Legal fees 233. The second applicant also claimed 10,000 Ukrainian hryvnias (UAH) for legal fees (equal to EUR 900 at the time when her claim was lodged). In support of this claim, she submitted a contract of legal services rendered in the proceedings before the Court dated 5 June 2008, according to which she was to pay the lawyer, Mr Lesovoy, UAH 10,000. That contract contained a handwritten receipt note by Mr Lesovoy according to which he had received the stipulated amount from the second applicant. 234. The Government considered that the second applicant had failed to demonstrate that the costs claimed were reasonable and had actually been incurred. 235. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999 ‑ V). 236. It notes that in the present case the second applicant was bound by and complied with her contractual obligations vis-à-vis Mr Lesovoy, who represented her son and herself in the proceedings before the Court. 237. The Court therefore considers that the aforementioned requirements have been met in this case and awards this claim in full. 2. Postal expenses 238. The second applicant also claimed UAH 262.69 (an equivalent of about EUR 25) for postal expenses. In support of her claim she submitted eight postal receipts in respect of her correspondence with the Court. 239. The Government submitted that the second applicant had failed to support her claim with documents. 240. Regard being had to the documents in its possession, the Court considers it reasonable to grant this claim in full and to award the second applicant EUR 25 under this heading. C. Default interest 241. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court found violations of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in respect of the first applicant, on account of the inadequate medical care provided to him both in the detention facilities and in hospital, and on account of his handcuffing in hospital. It also found a violation of Article 2 (right to life) of the Convention, on account of the authorities’ failure to protect the first applicant’s life and on account of their failure to conduct an adequate investigation into the circumstances of his death. The Court further held that there had been a violation of Article 3 (inhuman treatment) of the Convention in respect of the second applicant, on account of her suffering. The Court lastly found that Ukraine had failed to meet its obligations under Article 34 (right of individual petition) of the Convention by not complying promptly with the Court’s indication under Rule 39 (interim measures) of the Rules of Court to immediately transfer the first applicant to hospital for appropriate treatment. |
456 | Monitoring by prison authorities of a prisoner’s medical correspondence | II. RELEVANT DOMESTIC LAW AND PRACTICE 22. The Secretary of State is responsible for the management of the prison system in England and Wales (Prison Act 1952, sections 1 and 4). 23. Until November 2007 each prison was required to appoint a medical officer (Prison Act 1952, section 7(1)). The medical officer was a prison officer who had to be a registered medical practitioner (Prison Act 1952, section 4). This requirement was removed by section 25(1) of the Offender Management Act 2007 which came into force on 1 November 2007. Prison health care is now generally integrated with, and commissioned by, the National Health Service (NHS). 24. Section 47(1) of the Prison Act 1952 authorises the Secretary of State to make rules for the regulation and management of prisons and for the classification, treatment, employment, discipline and control of persons required to be detained therein. Such rules are made by statutory instrument, laid before Parliament, and are subject to annulment in pursuance of a resolution of either House of Parliament (Prison Act 1952, section 52(1) and the Criminal Justice Act 1967, section 66(4)). 25. Prisoners are classified in accordance with directions of the Secretary of State (Prison Rules SI 1999/728 rule 7(1)). Prisoners are classified in accordance with PSO 0900. Paragraph 1.1.1 of PSO 0900 contains the definitions of the four categories of prisoner (A, B, C and D). Category A is applied to prisoners whose escape would be highly dangerous to the public or the police or the security of the State, no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible. Category B is applied to prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult. 26. Rule 34 of the Prison Rules is headed “Communications Generally” It provides as relevant: “(1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8. (2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed – (a) does not interfere with the Convention rights of any person; or (b) ( i ) is necessary on grounds specified in paragraph (3) below; (ii) reliance on the grounds is compatible with the Convention right to be interfered with; and (iii) the restriction or condition is proportionate to what is sought to be achieved. (3) The grounds referred to in paragraph (2) above are – (a) the interests of national security; (b) the prevention, detection, investigation or prosecution of crime; (c) the interests of public safety; (d) securing or maintaining prison security or good order and discipline in prison; (e) the protection of health or morals; (f) the protection of the reputation of others; (g) maintaining the authority and impartiality of the judiciary; or (h) the protection of the rights and freedoms of any person. ... (8) In this rule – ... (c) references to Convention rights are to the Convention rights within the meaning of the Human Rights Act 1998.” 27. Rule 39 of the Prison Rules deals with correspondence with legal advisers and courts and provides that such correspondence may only be opened, read or stopped by the prison governor in accordance with the provision of that rule, namely when the governor has cause to believe either that the correspondence contains an illicit enclosure or that its contents endanger prison security or the safety of others or are otherwise of a criminal nature. 28. Chapter 36.1 of PSO 1000, which was applicable at the relevant time and which dealt with prisoner communications in connection with those who were in Category A prisons, or who were in prisons which held Category A prisoners, provided as follows: “Prison management must provide facilities for prisoners to maintain contact with family and friends. Prisoners ’ rights to respect for their private and family life and correspondence are also protected by Article 8 of the European Convention on Human Rights. The Prison Service ’ s duty to protect the public allows us to interfere in this privacy in order to minimise the possibility that, in communicating with the outside world, prisoners: ( i ) plan escapes or disturbances; (ii) jeopardise the security and good order of the prison; (iii) engage in offences against criminal law or prison discipline; (iv) jeopardise national security; (v) infringe the rights and freedoms of others.” 29. Chapter 36.21 of PSO 1000 read: “All correspondence, other than correspondence protected by PR39 [that is correspondence with legal advisors] or that with the Samaritans, must be read as a matter of routine in the following cases: ( i ) all prisoners of whatever security category, held in a unit which itself holds Category A prisoners.” 30. Chapter 36.22 continued as follows: “Routine reading is necessary in these cases in order to prevent escape and, in the case of Category A prisoners, in the interests of public safety. It is also necessary in preventing crime and disorder, for the protection of the rights and freedoms of others, and, in some cases, necessary in the interests of national security or the economic well being of the country.” 31. PSO 4411 is entitled “Prisoner Communications: Correspondence”. It came into operation on 5 September 2007. So far as is material to the present case it reflects the practice and procedure in operation from 2002 to 2004. 32. Special treatment was at the relevant time and still is given to various forms of correspondence apart from that with legal advisers, specifically covered by rule 39 of the Prison Rules and that with the Samaritans, specifically mentioned in Chapter 36.21 of PSO 1000. Correspondence with, inter alia, the courts, the Bar Council, the Law Society, the Criminal Cases Review Commission, the Office for the Supervision of Solicitors, the Office of the Parliamentary Commissioner, the Office of the Legal Services Ombudsman, the Probation Ombudsman, the Commission for Racial Equality and MPs are generally treated as confidential. 33. PSO 4411 introduced a new category of correspondence subject to confidential handling arrangements. Chapter 5.1 includes the Healthcare Commission as one of the bodies with which a prisoner is entitled to correspond confidentially. The Healthcare Commission is the independent watchdog for health care in England. It assesses and reports on the quality of services provided by the NHS and the independent health - care sector. III. RELEVANT INTERNATIONAL MATERIALS 34. Chapter III, paragraph 34 of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) standards published in October 2006 states the following: “ While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health - care service should be so organised as to enable requests to consult a doctor to be met without undue delay. Prisoners should be able to approach the health - care service on a confidential basis, for example, by means of a message in a sealed envelope. Further, prison officers should not seek to screen requests to consult a doctor. ” 35. Paragraph 50 of the CPT standards provides: “ Medical secrecy should be observed in prisons in the same way as in the community. ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 36. The applicant complained that the prison authorities had intercepted and monitored his medical correspondence in breach of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 37. The Government contested that argument. A. Admissibility 38. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 39. The Government accepted that the checking of the applicant ’ s correspondence with his external medical specialist amounted to an interference with his right to respect for his correspondence under Article 8 § 1 of the Convention. 40. Relying on the judgment of the Court of Appeal (particularly its findings set out in paragraph 19 above), the Government submitted that the interference was justified and proportionate under Article 8 § 2 of the Convention. They argued that the applicable legal framework provided clear and structured guidance on the matter, which paid full regard to the requirements of the Convention. They asserted that the procedure devised was tailored to the circumstances of the applicant ’ s case. Moreover, the disclosure of the applicant ’ s medical correspondence was limited to the prison medical officer who was himself bound by duties of medical confidentiality. They distinguished the present case, which involved a circumscribed reading of a single category of a prisoner ’ s correspondence by the prison medical officer, from cases which involved a blanket reading of prisoners ’ correspondence (such as Petra v. Romania, 23 September 1998, § 37, Reports of Judgments and Decisions 1998 ‑ VII, and Jankauskas v. Lithuania, no. 59304/00, §§ 21-22, 24 February 2005) which had been held to be in breach of Article 8 of the Convention. 41. The applicant argued that the monitoring of his correspondence was disproportionate. There was no suggestion in the Government ’ s observations of any specific ground to suggest that he was likely to abuse correspondence with his medical specialist. PSO 4411, to which the Government referred as being the policy governing correspondence, recognised that prisoners could correspond on a confidential basis with a number of bodies including the Healthcare Commission (which considered complaints concerning medical treatment) and the Samaritans (who provided counselling for the suicidal). According to PSO 4411, such correspondence could only be opened where there were reasonable grounds to believe that it contained an illicit enclosure. 42. The applicant further contended that there was an obvious risk that monitoring of medical correspondence would inhibit what a prisoner conveyed, thereby harming the quality of advice received. It was such concerns that had led to legal correspondence being accorded confidentiality. PSO 4411 demonstrated that prison security was not undermined by enabling prisoners to write on a confidential basis to lawyers and other professionals such as the Healthcare Commission. It was difficult to see why the risk of abuse of correspondence with doctors should be any higher than the risk of abuse involved in correspondence with lawyers. 2. The Court ’ s assessment 43. The Court notes that it is clear, and indeed not contested, that there was an “interference by a public authority” with the exercise of the applicant ’ s right to respect for his correspondence guaranteed by Article 8 § 1. Such an interference will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve them (see, among other authorities, Silver and Others v. the United Kingdom, 25 March 1983, § 84, Series A no. 61; Campbell v. the United Kingdom, 25 March 1992, § 34, Series A no. 233; Petrov v. Bulgaria, no. 15197/02, § 40, 22 May 2008; and Savenkovas v. Lithuania, no. 871/02, § 95, 18 November 2008 ). 44. It further observes that it is accepted by the parties that the reading of the applicant ’ s correspondence was governed by law and that it was directed to the prevention of crime and the protection of the rights and freedoms of others (see paragraph 17 above). The issue that falls to be examined is whether the interference with the applicant ’ s correspondence was “necessary in a democratic society”. 45. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. In determining whether an interference is “necessary in a democratic society” regard may be had to the State ’ s margin of appreciation (see, among other authorities, Campbell, cited above, § 44; Petrov, cited above, § 44; and Dickson v. the United Kingdom [GC], no. 44362/04, § 77, ECHR 2007 ‑ V ). While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention. 46. In assessing whether an interference with the exercise of the right of a convicted prisoner to respect for his correspondence was “necessary” for one of the aims set out in Article 8 § 2, regard has to be paid to the ordinary and reasonable requirements of imprisonment. Some measure of control over prisoners ’ correspondence is called for and is not of itself incompatible with the Convention (see, among other authorities, Silver and Others, cited above, § 98; Kwiek v. Poland, no. 51895/99, § 39, 30 May 2006; and Ostrovar v. Moldova, no. 35207/03, § 105, 13 September 2005 ). However, the Court has developed quite stringent standards as regards the confidentiality of prisoners ’ legal correspondence. In paragraph 43 of its judgment in Petrov (cited above), the Court enunciated its principles as regards legal correspondence in the prison context as follows: “ ... correspondence with lawyers ... is in principle privileged under Article 8 of the Convention and its routine scrutiny is not in keeping with the principles of confidentiality and professional privilege attaching to relations between a lawyer and his client (see Campbell ... §§ 47 and 48). The prison authorities may open a letter from a lawyer to a prisoner solely when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose. The letter should, however, only be opened and should not be read. Suitable guarantees preventing the reading of the letter should be provided, such as opening the letter in the presence of the prisoner. The reading of a prisoner ’ s mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature. What may be regarded as ‘ reasonable cause ’ will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication is being abused (see Campbell ... § 48). ” 47. In the present case, the interference took the form of the monitoring of the applicant ’ s correspondence with his external medical specialist, which concerned his life-threatening medical condition. The Court reiterates the Z v. Finland case ( 25 February 1997, Reports 1997 - I ), in which it emphasised that: “ ... the protection of personal data, not least medical data, is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health ... ” 48. Moreover, as the Court has recognised in its case-law under Article 3 of the Convention, notwithstanding the practical demands of imprisonment, detainees ’ health and well-being must be adequately served by, among other things, providing them with the requisite medical assistance (see, in this regard, Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 79, Series A no. 280-A, and Mouisel v. France, no. 67263/01, § 40, ECHR 2002 ‑ IX ). In this context, the Court refers also to the CPT standards as regards the importance of medical confidentiality in the prison context (see paragraphs 34 and 35 above). 49. Turning to the facts of the case, the Court considers it significant that the applicant is suffering from a life-threatening condition for which he has required continuous specialist medical supervision by a neuro ‑ radiologist since 2002. In this connection, it takes note of the Court of Appeal ’ s recognition that the monitoring of the applicant ’ s medical correspondence with his external medical specialist, albeit limited to the prison medical officer, involved an “inescapable risk of abuse”. It further notes that the Court of Appeal was careful not to exclude the possibility that in another case it might be disproportionate to refuse confidentiality to a prisoner ’ s medical correspondence (see paragraph 19 above) and its acceptance that allowing the prison medical officer to read such correspondence might lead him to encounter criticism of his own performance, which in turn could create difficulties in respect of the applicant ’ s prison life and treatment. It should not be overlooked that although he was a registered medical practitioner, the prison medical officer was, until the coming into force of section 25(1) of the Offender Management Act 2007, a prison officer. This has now changed as all prison health care is now provided by an external NHS general practitioner (see paragraph 23 above). 50. This being so, the Court notes the applicant ’ s submission before the domestic courts and before this Court that the monitoring by the prison medical officer of his correspondence with his external medical specialist inhibited their communication and prejudiced reassurance that he was receiving adequate medical treatment while in prison. Given the severity of the applicant ’ s medical condition, the Court, like Mr Justice Collins upon hearing the applicant ’ s claim for judicial review, finds the applicant ’ s concerns and wish to check the quality of the treatment he was receiving in prison to be understandable. 51. On that account, the Court notes the observations of both Mr Justice Collins and the Court of Appeal that the prison governor ’ s initial decision to grant the applicant ’ s medical correspondence confidentiality indicated, or in the exact words of the Court of Appeal, “strongly suggested” that it “would be a perfectly reasonable course” (see paragraphs 15 and 17 above). It further takes into consideration the procedure that had been first established by the prison governor on 18 September 2002, whereby the applicant ’ s medical correspondence would not be read provided that certain conditions were met (see paragraph 10 above). It is accepted that there were never any grounds to suggest that the applicant had ever abused the confidentiality afforded to his medical correspondence in the past or that he had any intention of doing so in the future. Furthermore, the Court considers it relevant that, although the applicant was detained in a high - security prison which also held Category A (high - risk ) prisoners, he was himself always defined as a Category B prisoner (for whom the highest security conditions are not considered necessary – see paragraph 25 above). 52. Furthermore, the Court does not consider the Prison Service ’ s arguments as to the general difficulties involved in facilitating confidential medical correspondence for prisoners (see paragraph 14 above) to be of particular relevance to this case. In the present case, the applicant only wished to correspond confidentially with one named medical specialist and the Court of Appeal accepted that her address and qualifications were easily verifiable. Moreover, the medical specialist in question appeared to have been willing and able to mark all correspondence with the applicant with a distinctive stamp, and had demonstrably done so prior to the prison governor ’ s revision of his decision on 28 November 2002. The Court does not share the Court of Appeal ’ s view that the risk that the applicant ’ s medical specialist, whose bona fides was never challenged, might be “intimidated or tricked” into transmitting illicit messages was sufficient to justify the interference with the applicant ’ s Article 8 rights in the exceptional circumstances of the present case. This is particularly so since the Court of Appeal further acknowledged that although the same risk was inherent in the case of secretarial staff of MPs (see paragraph 18 above), the importance of unimpeded correspondence with MPs outweighed that risk. 53. In light of the severity of the applicant ’ s medical condition, the Court considers that uninhibited correspondence with a medical specialist in the context of a prisoner suffering from a life-threatening condition should be afforded no less protection than the correspondence between a prisoner and an MP. In so finding, the Court refers to the Court of Appeal ’ s concession that it might, in some cases, be disproportionate to refuse confidentiality to a prisoner ’ s medical correspondence and the changes that have since been enacted to the relevant domestic law. The Court also has regard to the submissions of the applicant on this point, namely that the Government have failed to provide sufficient reasons why the risk of abuse involved in correspondence with named doctors whose exact address, qualifications and bona fides are not in question should be perceived as greater than the risk involved in correspondence with lawyers. 54. In view of the above, the Court finds that the monitoring of the applicant ’ s medical correspondence, limited as it was to the prison medical officer, did not strike a fair balance with his right to respect for his correspondence in the circumstances. 55. There has accordingly been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 56. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 57. The applicant claimed 10,000 pounds sterling (GBP) (approximately 11,450 euros (EUR) ) in respect of non-pecuniary damage. 58. The Government submitted that the amount claimed was excessive. They noted that in previous Article 8 cases, which involved interference with a prisoner ’ s correspondence, the finding of a violation was considered sufficient to constitute just satisfaction for the applicant and no damages were awarded. 59. The Court considers that in the particular circumstances of the case, the finding of a violation would not constitute just satisfaction for non ‑ pecuniary damage sustained by the applicant. Having regard to the violation found and ruling on an equitable basis, the Court awards the applicant EUR 1 ,000 in respect of non-pecuniary damage (see Čiapas v. Lithuania, no. 4902/02, § 30, 16 November 2006, and Zborowski v. Poland (no. 2), no. 45133/06, § 48, 15 January 2008). B. Costs and expenses 60. The applicant also claimed GBP 6,253.25 (approximately EUR 7,162) for the costs and expenses incurred before the Court. 61. The Government contended that the applicant ’ s claims for legal costs incurred seemed excessive for this type of case, particularly since his solicitors were not based in London. They suggested that the sum of GBP 4,500 (approximately 5,062 EUR) for legal costs would be a more reasonable figure. 62. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,000 for the proceedings before this Court. C. Default interest 63. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for correspondence) of the Convention. Noting that it was clear and not contested that there had been an “interference by a public authority” with the exercise of the applicant’s right to respect for his correspondence, that was governed by law and was aimed at the prevention of crime and the protection of the rights and freedoms of others, it found however that, in the circumstances of the case, the monitoring of the applicant’s medical correspondence had not struck a fair balance with his right to respect for his correspondence. |
235 | Right not to be tried or punished twice (Article 4 of Protocol No. 7) | II. RELEVANT DOMESTIC LAW AND PRACTICE 16. The Finnish system relating to the use as motor fuel of more leniently taxed oil than diesel oil is based on two main elements. First, the owners or users of motor vehicles are obliged to give prior notice to the authorities of their intention to use such fuel as motor fuel, and to pay additional tax (section 20 of the Motor Vehicle Tax Act, which has since been repealed) and/or a fuel fee (section 1 of the Fuel Fee Act as amended by Act no. 234/1998). Second, the authorities ensure compliance with those conditions by means of road checks. Tax evasion or attempted tax evasion was punishable under the Penal Code and failure to comply with the notification obligation was punishable as a motor vehicle tax offence (section 33 of the Motor Vehicle Tax Act). 17. The Fuel Fee Act’s provisions of interest for the present case read: “Section 2 - Fuel fee A vehicle referred to in section 1 shall be subject to a fuel fee as a tax corresponding to fuel tax if a more leniently taxed fuel than diesel oil is used in the vehicle. A fuel fee shall not be collected on the fuel contained in the tank of a vehicle when the vehicle is imported. A fuel fee shall, however, be collected if the fuel contained in the tank of the imported vehicle has been made identifiable as provided by virtue of the Excise Duty on Fuels Act (Act no. 948/82). A vehicle in respect of which a notification within the meaning of section 20 of the Motor Vehicle Tax Act has been given for collecting additional tax shall not be subject to a fuel fee during the tax period of the additional tax. Section 3 - Notification obligation If a more leniently taxed fuel than diesel oil is used in a vehicle referred to in section 1, the owner or holder of the vehicle shall be obliged to notify the Vehicle Administration of such use before using it. In respect of a vehicle imported to Finland, the notification may also be given to the customs authorities. Section 4 - Imposition of a fuel fee A fuel fee shall be collected for the number of days on which, according to a notification, a more leniently taxed fuel than diesel oil is used in a motor vehicle. If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle during a time in respect of which no prior notification has been given, a fuel fee shall be collected for the number of days on which the vehicle has been continuously located in Finland prior to the use, but not for more than 20 days at a time. If a fuel fee has been imposed on the vehicle, the time shall be counted from the first day following the previous tax period at the earliest. If the date of importing the vehicle to Finland cannot be established, the fuel fee shall be collected for a minimum of 10 days. Section 5 – The amount of the fuel fee The fuel fee for a pickup van is FIM 1,500 [equivalent to EUR 252.28] per diem. ... Section 6 - Increase of the fuel fee If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notification under section 3 has been given, the fuel fee collected shall be three times the normal amount. Section 7 - Party liable for payment The fuel fee shall be collected from the person who was the owner of the vehicle at the time when a more leniently taxed fuel than diesel oil was used in the vehicle. If another person holds the vehicle permanently in his or her possession, the fuel fee shall be collected from this holder. ... ... Section 9 - Establishing the use of fuel The use of a fuel other than diesel oil shall be presumed if a tank belonging to the fuel system of a vehicle contains a fuel which has been made identifiable pursuant to the legal provisions on light fuel oil. A fuel fee shall be collected irrespective of the amount of such fuel in the vehicle. ... Section 15 - Tax relief and respite of payment For particularly weighty reasons the Ministry of Finance may, on application and on conditions set by the Ministry, grant exemption from the payment of a fuel fee, penal interest or arrears, and interest due because of deferral of payment. The National Board of Taxes shall make a decision on the application referred to in subsection 1 if the sum whose removal or return is requested does not exceed FIM 300,000 [equivalent to EUR 16,818.79]. The Ministry of Finance may, however, take the case up for decision if it is of particular significance. The National Board of Taxes may, on application, defer the payment of a fuel fee. The provisions on the additional tax on the motor vehicle tax shall apply to the conditions of such deferral. The Ministry of Finance may take a case concerning deferral of payment up for decision. In such cases, the Ministry shall determine the conditions of deferral in its decision concerning the application. A decision made by virtue of this section shall not be subject to appeal. Section 16 - Penal provisions Illegal evasion of a fuel fee, and attempted evasion thereof, are punishable under Chapter 29, Articles 1-3, of the Penal Code.” 18. According to the Government Bill for the enactment of the Fuel Fee Act and amendment of section 6 of the Excise Duty on Fuels Act and section 16 of the Motor Vehicle Tax Act (no. HE 329/1992), the fuel fee is intended to correspond to the fuel tax which would have accrued if diesel oil had been used as fuel in the vehicle. 19. Government Bills nos. HE 329/1992 vp and HE 234/1998 vp note that section 4 of the Fuel Fee Act is based on the presumption that the same fuel is used in the vehicle continuously. Since it is usually impossible to provide evidence of the type of fuel used in the vehicle before it is observed by the authorities, or to provide evidence of the extent to which the vehicle has been used, the imposition of the fuel fee has to be based on the time during which the vehicle has been used in Finland. For reasons of equity, however, the period is restricted to 20 days at a time. 20. With regard to section 15, the Government submitted that in most cases where a tax appeal is pending the National Board of Taxes refuses tax relief. This also concerns the application of section 15 of the Fuel Fee Act. If an application for tax modification has been rejected for this or another reason, the applicant may, notwithstanding the existing decision, file a new modification application with the same authority after the decision on taxation has become final. The Government did not refer to any such decision. 21. The Fuel Fee Act in force at the relevant time was replaced by a new Fuel Fee Act (Act no. 1280/2003, with effect from 1 January 2004, which was not therefore applicable to the present case). Section 3 provides that a fuel fee is imposed for the purpose of preventing the use of a fuel which gives rise to the imposition of a fuel fee, and that the use in vehicles of a fuel which gives rise to the imposition of a fuel fee is prohibited. Section 9 lays down the sums of the fuel fees imposed on different types of cars. Section 10 provides that if a notification has not been made to the competent authority, the fuel fee shall be increased by 30% at most. The fuel fee may also be increased by 50% at most if the use of the fuel which gives rise to imposing the fuel fee is repeated, or doubled at most if the use of the fuel which gives rise to imposing the fuel fee is particularly aggravated. 22. The Government Bill for the enactment of the new Fuel Fee Act (HE 112/2003, p. 7) noted that the use of more leniently taxed fuel led to the issuing of a fuel fee debit and an additional motor vehicle tax and that the aim of this was effectively to prevent the use of fuel other than fuel intended for traffic. Formally, the use of more leniently taxed fuel was not forbidden, but it was subject to fairly severe financial sanctions. The basic structure of the Fuel Fee Act and the Motor Vehicle Tax Act was identical to, for example, the Penal Code, which does not specifically forbid certain unwanted acts but only provides for the consequences of such acts. The only difference was that the sanction applicable to the use of fuels was an administrative sanction collected as a tax. The basic aim of the provisions on additional tax and fuel fee is well established in Finland. The provisions are well-known among motorists and the consequence is that, compared with other countries, more leniently taxed fuel is hardly ever used in road traffic in Finland. The Government Bill considered that the high level of the fuel fee was necessary with regard to the preventive effect of the sanctions system. 23. Chapter 29, Articles 1-3, of the Penal Code provide: “Article 1 - Tax fraud (Act no. 1228/1997) A person who (1) gives a taxation authority false information on a fact that influences the assessment of tax, (2) files a tax return concealing a fact that influences the assessment of tax, (3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or (4) acts otherwise fraudulently, and thereby causes or attempts to cause a tax not to be assessed, a tax to be assessed too low or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for at most two years. Article 2 - Aggravated tax fraud (Act no. 769/1990) If in the tax fraud (1) considerable financial benefit is sought or (2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for at least four months and at most four years. Article 3 - Petty tax fraud (Act no. 769/1990) (1) If the tax fraud, when assessed as a whole, with due consideration to the amount of financial benefit sought and the other circumstances connected with the offence, is to be deemed petty, the offender shall be sentenced for petty tax fraud to a fine. (2) If a punitive tax increase is deemed a sufficient sanction, the report of, or prosecution or punishment for, petty tax fraud may be waived.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 24. The applicant complained under Article 4 of Protocol No. 7 to the Convention that he had been punished twice for the same offence. Article 4 of Protocol No. 7 to the Convention reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” 25. The Government contested that argument. A. Admissibility 26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 27. The applicant argued that what was in issue was one single offence or violation of a single object of legal protection. The principal purpose of the fuel fee was to ensure that more leniently taxed fuel than diesel oil was not used in diesel vehicles. The fuel fee alone had no fiscal purpose. He could have used a more leniently taxed fuel by notifying the authorities of such use and by paying a daily fee amounting to some EUR 252. However, it had not been possible to drive the pickup van during a single day such a distance as to make the use of such fuel financially viable. The result of the failure to give prior notice had been that the applicant had been considered to have used more leniently taxed fuel for a period of twenty days although his statement that the use involved one fill-up of the fuel tank had not been proved wrong. The consequences were out of all proportion and unreasonable taking into consideration even the absolute benefit sought through the offence, that is, the difference in price between fuel taxed as diesel oil and more leniently taxed fuel, the reprehensibility and unique nature of the act, the financial position and actions of the offender and other circumstances. The applicant’s application for exemption from payment of the fuel fee or a decrease thereof had been unsuccessful. Although the increased fuel fee was characterised as an administrative sanction, it should be equated with a criminal sanction. 28. The applicant considered that the prohibition on the use of more leniently taxed fuel had technically been in existence even prior to the entry into force in 2004 of the new Fuel Fee Act. The legislation provided for a high fuel fee so as to render the actual use of such fuel impossible. In practice, few notifications were made of the use of more leniently taxed fuel oil in cars and vans. A prohibition on the use of light fuel oil had not even been proposed in the Government Bill for the enactment of the new Fuel Fee Act. It was only added to the Bill during consideration in the Finance Committee (report no. 37/2003 vp). This demonstrated that the State had long held that the notification procedure including sanctions was sufficient to prevent the use of more leniently taxed fuel in diesel vehicles. The applicant took the view that the essential elements of the punishable offence were identical in the provision on petty tax fraud and in the Fuel Fee Act. Likewise, the administrative fuel fee and the penal sanction resulting from petty tax fraud were imposed for one and the same act. Under the wording of sections 3-4 and 6 of the Fuel Fee Act, the fuel fee was imposed for failure to observe the notification obligation. According to the essential elements of tax evasion in the Penal Code, a person who for the purpose of avoiding tax fails to observe a duty pertaining to taxation or influencing the assessment of tax shall be sentenced for tax fraud. The use of the more leniently taxed fuel would have been permissible subject to payment of a daily fee. The increased fuel fee was imposed for failure to submit a prior notification. It was for precisely the same reason, that is failure to observe the notification obligation, that the fine had been imposed. The fuel fee had thus not been imposed because the use of more leniently taxed fuel was prohibited as such. The fact of the fuel fee being imposed irrespective of intent or negligence only served to underscore the citizens’ need for judicial relief and it did not change the essentially criminal nature of the fuel fee. The Fuel Fee Act and the Penal Code had the same structure, a stand which was also taken in the Government Bill for the enactment of the new Fuel Fee Act. 29. The applicant submitted that he had been punished for petty tax fraud on the ground that he had failed to give notification in advance. In practice, the owner or holder of a vehicle cannot be unaware of the type of fuel used in that vehicle. In theory, the fuel tank of a vehicle could be filled with more leniently taxed fuel during unauthorised use. Any occurrence of such a scenario would again only underscore the need of citizens for judicial relief. In the case of Västberga Taxi Aktiebolag and Vulic v. Sweden, no. 36985/97, 23 July 2002) the Court held that the question of whether a tax or tax surcharge could be converted into a prison sentence was not decisive for the classification of an offence as “criminal”. The characterisation in Finland of the current fuel fee as an administrative sanction and the fact that appeals against it were examined by an administrative court had no relevance to the case. 30. The applicant argued that his case was distinguishable from the case of Ponsetti and Chesnel v. France (dec.) (nos. 36855/97 and 41731/98, ECHR 1999 ‑ VI), which involved failure to file tax returns, whereas the present case involved failure to file prior notification. In the former case the tax consequence was based on accounts, that is, the amount of tax actually evaded. In the present case, the amount of tax actually evaded had not been established but it seemed indisputable that the fuel fee significantly exceeded the amount of tax actually evaded. In the case of Ponsetti and Chesnel, interest on arrears and tax surcharge amounted to 40-80%. In the present case, the tax was increased by 300%. The former case involved chronic and repeated failure whereas the present case involved a single instance of failure of short duration. In the former case, the essential elements of tax fraud differed from those of failure to file tax returns in a timely fashion, whereas in the present case the essential elements of tax fraud and failure to notify were the same. Moreover, the acts in the present case were congruous. 31. The Government submitted that the aim of the Fuel Fee Act in force at the relevant time was to ensure that the State would in all circumstances, in respect of diesel vehicles, obtain at least the same amount of tax that accrued from the use of diesel oil instead of the generally available and more leniently taxed light fuel oil. The primary purpose of the legislation was to ensure the use of diesel oil in diesel vehicles. At that time, the legislation did not contain any formal prohibition on the use of more leniently taxed fuel and therefore it was necessary to make the use of such fuel financially less advantageous than the use of diesel oil. This was ensured by providing for a high flat-rate tax (the fuel fee). Although the use of a more leniently taxed fuel was not prohibited, anyone who used such fuel was obliged to give prior notification. The fee was imposed irrespective of whether the person in question defaulted on the notification obligation intentionally or through carelessness since this guaranteed the State’s tax income irrespective of how the conduct of the tax payer was assessed. The amount of the fuel fee depended solely on the vehicle type. Failure to comply with the notification obligation resulted in the fuel fee being collected threefold. Furthermore, a fuel fee could only be reduced in individual cases for particular reasons. Although the increased fuel fee had the nature of an administrative sanction, its main objective was to collect tax revenue and to safeguard the operation of the fuel taxation system. According to the new Fuel Fee Act, the fuel fee was, unlike before, a sanction for a violation of a prohibition laid down in the Act. However, the purpose of the fee remained unchanged, that is, to ensure the proper accrual of tax revenue. 32. The Government submitted that petty tax fraud was an offence under the Penal Code punishable in criminal proceedings by a fine (the amount of the day-fine being dependent on the income and assets of the person concerned). Failure to pay a fine resulted in its being converted to a prison sentence. The increased fuel fee was not a penal sanction but an administrative one, imposed in an administrative procedure and could not, therefore, be equated to a determination of a criminal charge against the applicant. This was also reflected in the new Fuel Fee Act, which contained an express prohibition on the of use light fuel oil. This change to the legislation resulted from the judgment of the European Court of Justice of 27 November 2003 concerning Finland (Case C-185/00: Commission of the European Communities v. Republic of Finland ) in which the European Court of Justice deemed that Community legislation obliged Finland to amend its legislation so as to ensure, more efficiently than before, that fuels were used in compliance with fuel directives (see Council Directive 92/81/EEC on the harmonisation of the structures of excise duties on mineral oils and Council Directive 92/82/EEC on the approximation of the rates of excise duties on mineral oils, both replaced by Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity ). As to the applicant’s view that the prohibition on the use of more leniently taxed fuel had technically been in existence also before the amendment, the Government submitted that it was indeed true that the rate of the fuel fee was so high that its payment was disadvantageous even if the person concerned only had to pay the basic amount. However, in the above-mentioned judgment it had been found that Finland had failed to fulfil its obligations under Community law. Thus, the prohibition on the use of more leniently taxed fuel and the fact that the sanction for using the wrong fuel was severe, have been found to constitute different legal issues. As to the applicant’s submission that the State had long held that the notification procedure inclusive of sanctions was sufficient to prevent the use of more leniently taxed fuel in diesel vehicles, the Government submitted that this was true, and that this fact had also been relied on before the European Court of Justice. However, it did not render the fuel fee a criminal law sanction nor a sanction of a comparable nature, as its aim was specifically to ensure the accrual of tax revenue, primarily by ensuring the use of taxable diesel oil in vehicles and secondarily by corresponding at least to the tax difference between the different fuels. 33. The Government argued that although the increased fuel fee could be considered quite substantial, the essential elements of the acts leading to its imposition on the one hand and to punishment for petty tax fraud on the other differed significantly from each other and did not constitute one and the same act on the following grounds. Firstly, the administrative fuel fee was imposed for using a fuel that was taxed more leniently than diesel oil whereas the criminal sanction for petty tax fraud was imposed for illegal evasion of the fuel fee, the punishable act being failure to comply with the notification obligation laid down in the Fuel Fee Act. Thus, the administrative fuel fee and the criminal sanction for petty tax fraud were imposed for different acts. Secondly, the sanction provided for in the Penal Code always necessitated intent or at least negligence, and petty tax fraud was always intentional and thus essentially involved a subjective element. By contrast, the fuel fee was imposed, irrespective of the degree of intent, on the basis of the mere objective fact that the fuel system of a vehicle contained the wrong fuel. Thirdly, the purpose of the criminal sanction for tax fraud was to constitute a punishment and to express moral reproach for a certain act. The fuel fee did not have a similar purpose of punishment or reproach. It was only intended to ensure the accrual of tax revenue, primarily by ensuring the use of taxable diesel oil in vehicles and secondarily by corresponding at least to the tax difference between the different fuels. Moreover, the higher fuel fee was not intended to be a punishment, but only to ensure that vehicle users gave prior notification if they wanted to use a more leniently taxed fuel. Fourthly, the fuel fee system in force at the relevant time also differed from a punishment in that it made it legally possible for vehicle owners to choose to use a tax-free fuel, to notify the authorities of this and to pay the fuel fee, an option which was not open in respect of acts regulated by criminal law. Fifthly, only a perpetrator or an accomplice comparable with the perpetrator could be sentenced to a sanction under criminal law. Emphasis should be put on the fact that owners or holders of a vehicle had to pay the fuel fee irrespective of whether they used the fuel concerned. Sixthly, an unpaid fine could be converted to imprisonment whereas an unpaid fuel fee could not. Seventhly, criminal cases were examined by general courts whereas cases concerning fuel fees were examined in an administrative procedure, like tax cases, and finally through an appeal to an administrative court. 34. The Government argued that the present case was similar to the case of Ponsetti and Chesnel (cited above) in that the constitutive elements of tax fraud and those of failure to file tax returns within the prescribed period (“the fiscal offence”) were different. The cases were also similar in that tax fraud included the element of “wilfulness” whereas the “fiscal offence” was possible on solely objective grounds. On the other hand, when compared to the aforementioned case, it could be noted that in respect of the fuel fee in the present case, the acts underlying the sanctions were even more clearly composed of different elements than the acts giving rise to a tax penalty, as the fuel fee could, on the conditions mentioned in the foregoing, be imposed even if there had been no intention of tax evasion. 35. Should the Court find it necessary to examine whether any of the exceptions mentioned in Article 4 § 2 of Protocol No. 7 would have been applicable to the said procedures, the Government took the view that none of these exceptions was applicable to the present case. 36. As to the applicant’s view that the structure of the Fuel Fee Act and the Penal Code was the same, it was true that at the relevant time, the Fuel Fee Act did not contain a prohibition on the use of more leniently taxed fuel, in the same way as the Penal Code did not explicitly prohibit the commission of acts that were punishable under it. This common feature was also referred to in the Government Bill (112/2003) for the enactment of the new Fuel Fee Act. However, the purpose of the reference was only to indicate that the fuel fee must be considered an effective means of ensuring the collection of fuel tax or of a corresponding amount of taxes, irrespective of whether the fuel fee was based on a prohibition of use. A further reason for the inclusion of the aforementioned comparison of the Fuel Fee Act with the Penal Code was the case pending before the European Court of Justice. The purpose was only to indicate that the objectives of legislation may be achieved even if not based on a prohibition. Thus, the applicant’s quotation was irrelevant in relation to the present case. 37. The Government argued that, had the applicant notified the use, the question of tax fraud could not have been raised since there would have been no tax evasion. Thus, the applicant’s conduct would not have been reprehensible as required for the application of criminal law sanctions. At the relevant time, it was in accordance with the law to pay the fuel fee and then start using more leniently taxed fuel. Whether this was financially viable was an entirely different issue. 38. The Government reiterated that the administrative fuel fee and the criminal sanction for petty tax fraud were not imposed for similar acts. The fuel fee was imposed for using a fuel that was taxed more leniently than diesel oil. The criminal sanction, by contrast, was imposed for illegal evasion of the fuel fee, the punishable act being the failure to comply with the notification obligation laid down in the Fuel Fee Act. The fact that a criminal sanction could only be imposed on a person who had committed a criminal act, and that the fuel fee was imposed on the owner or holder of the vehicle, was an essential difference between administrative and criminal sanctions. The applicant’s allegation to the effect that in practice the owner or holder of a vehicle cannot be unaware of the type of fuel used in that vehicle, was not true, for example in respect of vehicles owned by employer companies. Furthermore, whether the owner or holder of the vehicle was aware of the type of fuel had essentially different relevance in administrative and criminal proceedings. 39. As to the fact that in the case of Ponsetti and Chesnel the tax consequence imposed was based on tax actually evaded, which was not the case in the present application, the Government submitted that this difference was due to differences in the applicable forms of taxation. The fuel fee was not dependent on income and nor could the amounts of fuel used in individual vehicles be taken into account in the imposition of the fee, for practical reasons. 40. The Government further emphasised that the duration of the reprehensible conduct should not be of relevance considering, in particular, that there could be no evidence of what type of fuel had been used in the vehicle at times other than the moment when the person concerned was caught using the wrong type of fuel. 2. The Court’s assessment A. Whether the sanctions were criminal in nature 41. The aim of Article 4 § 1 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision. In the case under consideration two measures were imposed on the applicant in two separate and consecutive sets of proceedings. On 26 February 2001 the applicant was fined in summary penal order proceedings and on 17 September 2001 the applicant was issued with a fuel fee debit in administrative proceedings. 42. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention (see, most recently, Storbråten v. Norway (dec.), no. 12277/04, ECHR 2007 ‑ ... (extracts), with further references). The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Haarvig v. Norway (dec.), no. 11187/05, 11 December 2007; Rosenquist v. Sweden (dec.), no. 60619/00, 14 September 2004; Manasson v. Sweden (dec.), no. 41265/98, 8 April 2003; Göktan v. France, no. 33402/96, § 48, ECHR 2002-V; Malige v. France, 23 September 1998, § 35, Reports of Judgments and Decisions 1998 ‑ VII; and Nilsson v. Sweden (dec.), no. 73661/01, ECHR 2005 ‑ ...). 43. The Court’s established case-law sets out three criteria, commonly known as the “ Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. It is enough that the offence in question is by its nature to be regarded as criminal or that the offence renders the person liable to a penalty which by its nature and degree of severity belongs in the general criminal sphere (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 86, ECHR 2003 ‑ X). The relative lack of seriousness of the penalty cannot divest an offence of its inherently criminal character (see Öztürk v. Germany, judgment of 21 February 1984, Series A no. 73, § 54, and Lutz v. Germany, judgment of 25 August 1987, Series A no. 123, § 55). This does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, as recent authorities, Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006 ‑ ..., and Ezeh and Connors, cited above, § 82-86). 44. As noted above, first, the applicant was fined in summary penal order proceedings because he had used more leniently taxed fuel than diesel oil in the tank of his vehicle, which constituted petty tax fraud. The proceedings were “criminal” according to the Finnish legal classification. Those proceedings were “criminal” also for the purposes of Article 4 of Protocol No. 7 and consequently the applicant was “finally acquitted or convicted in accordance with the law and penal procedure of [the] State”. The guarantee of Article 4 of Protocol No. 7 comes into play where a new set of proceedings is instituted after the previous acquittal or conviction has acquired the force of res judicata. In this case, the applicant did not appeal against the summary penal order, which therefore became res judicata. 45. Subsequently, the applicant was issued with a fuel fee debit in administrative proceedings. Turning to the first of the Engel criteria, it is apparent that the fuel fee debit was not classified as criminal but as part of the fiscal regime (see paragraph 12 above). This is however not decisive. In this connection, the Court has previously found that the sphere defined in the Finnish legal system as “administrative” embraces certain offences that have a criminal connotation but are too trivial to be governed by criminal law and procedure (see Jussila v. Finland [GC], cited above, § 38). 46. The second criterion, the nature of the offence, is the more important. The Court observes that the relevant provision of the Fuel Fee Act was directed towards all citizens rather than towards a group possessing a special status. The applicant was liable in his capacity as owner or user of a diesel engine vehicle. As to the Government’s argument that the fuel fee debit was intended as pecuniary compensation for damage, the Court is however not so convinced in the circumstances of the present case. It may well be that the fuel fee imposed corresponded to the damage caused, namely loss of revenue. It is however to be noted that the fuel fee collected was trebled. This must in the Court’s view be seen as a punishment to deter re-offending, recognised as a characteristic feature of criminal penalties (see Ezeh, §§ 102 and 105). It may therefore be concluded that the fuel fee debit was imposed by a rule whose purpose was not only compensatory but also deterrent and punitive. The Court considers that this establishes the criminal nature of the offence. 47. In the light of the above considerations the Court concludes that the nature of the offence was such as to bring the issuing of the fuel fee debit on 17 September 2001 within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No. 7. B. Whether the latter sanction arose from the same facts as the former and whether there was a duplication of proceedings 48. In the case of Sergey Zolotukhin v. Russia [GC] (no. 14939/03, §§ 70-78, 10 February 2009) the Court observed that the body of case-law that had been accumulated throughout the history of application of Article 4 of Protocol No. 7 by the Court demonstrated the existence of several approaches to the question of whether the offences for which an applicant was prosecuted were the same. Seeking to put an end to this legal uncertainty the Court decided to provide a harmonised interpretation of the notion of the “same offences” – the idem element of the non bis in idem principle. 49. In the aforementioned case (§ 82) the Court took the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same. 50. Turning to the present case, the Court will examine whether the subsequent issuing of the fuel fee debit arose from the same facts as the fine ( idem ) and whether there was a duplication of proceedings ( bis ). The Court notes that the statement of the facts in the decisions by which the “penal procedures” were concluded are an appropriate starting point for its determination of the issue of whether the facts in both proceedings were identical or substantially the same. The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked in time and space. 51. The Court will begin its analysis of the circumstances in the instant case by reviewing the events of 17 January 2001 and the fine imposed and the fuel fee levied on the applicant. On 26 February 2001 the applicant was fined under Chapter 29, Article 3, of the Penal Code and sections 20 and 33 of the Motor Vehicle Tax Act for petty tax fraud or, more precisely, a motor vehicle tax offence. Although the summary penal order contained only two sentences relevant to the establishment of the facts, it transpires that the fine was issued on the ground that he had used a more leniently taxed fuel than diesel oil in the tank of his van without having paid due additional tax and that he had filled the tank himself (see paragraph 7 above). 52. In the subsequent administrative proceedings the applicant was issued with a fuel fee debit on the ground that his pickup van had been noted to have been used during the year 2001 with fuel more leniently taxed than diesel oil. As he had failed to inform the Vehicle Administration or the Customs of the use in advance, the fuel fee collected was to be trebled. The decision also noted that the applicant had conceded that he had used the wrong fuel in his vehicle. 53. This recapitulation of the events and sanctions demonstrates that since the same conduct on the part of the same defendant and within the same time frame is in issue, the Court is required to verify whether the facts of the offence for which the applicant was fined and those of the offence by reason of which he was issued with a fuel fee debit were identical or substantially the same. 54. The definition of the offences of “tax fraud” and “petty tax fraud” under Chapter 29, Articles 1 and 3, of the Penal Code referred to various types of prohibited conduct (see paragraph 23 above). Each of these elements was in itself sufficient for a finding of guilt. The police must be considered to have based the summary penal order on the fact that the applicant had “otherwise acted fraudulently” and thereby caused or attempted to cause a tax not to be assessed. It was also considered essential that the applicant had filled the tank himself. 55. In the ensuing administrative proceedings the applicant was issued with a fuel fee debit on the ground that his car had been run on more leniently taxed fuel than diesel oil. The fuel fee debit was trebled on the ground that the applicant had not given prior notice of this fact. Although the Administrative Court’s decision noted that the applicant had admitted having used the wrong fuel, the imposition of the fuel fee debit did not require intent on the part of the user of the wrong fuel. 56. To sum up, the facts that gave rise to the summary penal order against the applicant related to the fact that he had used more leniently taxed fuel than diesel oil in his pickup van without having paid additional tax for the use. The fuel fee debit was imposed because the applicant’s pickup van had been run on more leniently taxed fuel than diesel oil and it was then trebled because he had not given prior notice of this fact. This latter factor has above been considered to have amounted to a punishment to deter re-offending. Thus, the facts in the two sets of proceedings hardly differ albeit there was the requirement of intent in the first set of proceedings. The facts of the two offences must, the Court considers, therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7. As the Court has held, the facts of the two offences serve as its sole point of comparison (see Sergey Zolotukhin v. Russia [GC], cited above, § 97). Lastly, the Court notes that the latter proceedings did not fall within the exceptions envisaged by the second paragraph of the said provision. 57. The foregoing considerations are sufficient to enable the Court to conclude that there has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 58. The applicant complained that the failure to comply with the non bis in idem rule also amounted to a violation of Article 6 of the Convention. 59. The Court notes that that principle is embodied solely in Article 4 of Protocol No. 7; the other provisions of the Convention do not guarantee compliance with it either expressly or implicitly (see Ponsetti and Chesnel v. France (dec.), cited above). It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 61. Under the head of pecuniary damage the applicant requested that the fuel fee, inclusive of increases and consequences for default, be voided in full and that he be reimbursed for any payments made inclusive of interest and arrears. He did not specify any amounts. Under the head of non-pecuniary damage the applicant claimed EUR 15,000 for suffering and distress. This amount represented EUR 3,000 for each year subsequent to the imposition of the fuel fee. 62. The Government considered that the costs relating to the fine amounting to FIM 729 (EUR 121) could be reimbursed and that the applicant should be awarded reasonable compensation for non-pecuniary damage not exceeding EUR 1,000. 63. The Court notes that the applicant has not claimed reimbursement of the fine amounting to EUR 121. Nor has he shown that he has paid the trebled fuel fee and it therefore rejects this claim. On the other hand, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage. B. Costs and expenses 64. The applicant claimed EUR 13,733.60 for the costs and expenses incurred before the Court. 65. The Government considered the total of 46.6 hours’ work (at a rate of EUR 200 plus VAT per hour) excessive. Also, the applicant had not submitted any invoice concerning the costs of translations. The award under this head should not exceed EUR 4,500 (inclusive of VAT). 66. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession, the above criteria and the legal aid granted by the Council of Europe, the Court considers it reasonable to award the sum of EUR 8,000 (inclusive of VAT) for the proceedings before the Court. C. Default interest 67. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that had been a violation of Article 4 (right not to be tried or punished twice) of Protocol No. 7 to the Convention. It firstly noted that both sanctions imposed on the applicant had been criminal in nature: the first set of proceedings having been criminal according to the Finnish legal classification; and, the subsequent set of proceedings, although classified as part of the fiscal regime and therefore administrative, could not just be considered compensatory given that the difference in tax charge had been trebled as a means to punish and deter re-offending, which were characteristic features of a criminal penalty. Furthermore, the facts behind both sets of proceedings against the applicant had essentially been the same: they both concerned the use of more leniently taxed fuel than diesel oil. The only difference had been the notion of intent in the first set of proceedings. In sum, the second sanction had arisen from the same facts as the former and there had therefore been a duplication of proceedings. Nor did the second set of proceedings contain any exceptions, such as new evidence or facts or a fundamental defect in the previous proceedings which could affect the outcome of the case, as envisaged by the second paragraph of Article 4 of Protocol No. 7. |
1,051 | Work during detention | PROCEEDINGS BEFORE THE COMMISSION 30. On 2 January 1974, Mr. Van Droogenbroeck had lodged a first application (no. 6989/75) which the Commission declared inadmissible on 5 March 1976 on account of failure to exhaust domestic remedies. In his second application, dated 16 April 1977 (no. 7906/77), he maintained that he was held in servitude and forced to work, contrary to paragraphs 1 and 2 of Article 4 of the Convention (art. 4-1, art. 4-2). He further alleged that his deprivation of liberty, which in his view had been ordered by the Minister of Justice and not by a court, contravened paragraph 1 of Article 5 (art. 5-1) and that he had not been able to seek a judicial review of the lawfulness of his various periods of detention, as was required by paragraph 4 of the same Article (art. 5-4). Finally, he complained of an interference with his freedom of expression, guaranteed by Article 10 (art. 10), contending that he was on two occasions subjected to disciplinary sanctions for having protested against the Recidivists Board ’ s recommendations. 31. On 5 July 1979, the Commission rejected the last complaint as being manifestly ill-founded (Article 27 par. 2) (art. 27-2) and declared the remainder of the application admissible. In its report of 9 July 1980 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion that there had been a violation of paragraph 4 of Article 5 (art. 5-4) (unanimously), but not of paragraph 1 (art. 5-1) (ten votes to two) or of Article 4 (art. 4) (unanimously). The report contains one dissenting opinion. SUBMISSIONS MADE BY THE GOVERNMENT TO THE COURT 32. In their memorial of April 1981 and in their supplementary memorial of February 1982, the Government submitted: "that it may please the Court to hold that in the applicant ’ s case there has been no violation of any provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms." AS TO THE LAW I. THE ALLEGED VIOLATION OF ARTICLE 5 PAR. 1 (art. 5-1) 33. In so far as it is applicable in the present case, Article 5 par. 1 (art. 5-1) of the Convention reads: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ..." Sub-paragraphs (b) to (f) are clearly not relevant; besides, none of them was relied on by the Government. 34. As regards paragraph 1 (a) (art. 5-1-a), there is no dispute as to the "competence" of the "court" which ordered the measure complained of, namely the Ghent Court of Appeal by its judgment of 20 October 1970 (see paragraph 9 above). The same is true of the question whether any deprivation of liberty occurred. In this connection, it should be recalled that according to Belgian case-law the placing of recidivists and habitual offenders at the Government ’ s disposal is to be classified as a penalty involving deprivation of liberty; this is so irrespective of the form which implementation of the order may take in a given case or at a gi1ven time, be it detention, semi-custodial care, or remaining at liberty under supervision or on probation (see paragraphs 19 and 21 above - Court of Cassation, 4 April 1978, Pasicrisie 1978, I, p. 861). However, the Court will take into account solely the first of such forms, this being the only one of which Mr. Van Droogenbroeck complained. In view of the particulars supplied by the Commission ’ s Delegate at the hearings of 20 October 1981, the Court will confine its examination to the periods of detention which were the subject of Mr. Van Droogenbroeck ’ s application no. 7906/77 (see paragraph 30 above), namely those running from 21 January 1976 to 1 June 1977 and from 21 December 1977 to 18 March 1980 (see paragraphs 13-18 above). 35. The Court has to determine whether those periods of detention occurred "after conviction" by the Ghent Court of Appeal. Having regard to the French text, the word "conviction", for the purposes of Article 5 par. 1 (a) (art. 5-1-a), has to be understood as signifying both a "finding of guilt" after "it has been established in accordance with the law that there has been an offence" (see the Guzzardi judgment of 6 November 1980, Series A no. 39, p. 37, par. 100), and the imposition of a penalty or other measure involving deprivation of liberty. These conditions are satisfied in the instant case. The word "after" does not simply mean that the "detention" must follow the "conviction" in point of time: in addition, the "detention" must result from, "follow and depend upon" or occur "by virtue of" the "conviction" (see the X v. the United Kingdom judgment of 5 November 1981. Series A no. 46, p. 17, par. 39; the Engel and others judgment of 8 June 1976, Series A no. 22, p. 27, par. 68). 36. According to the applicant, the deprivations of liberty complained of stemmed not from a sentence imposed by a "competent court" but from decisions taken by the Minister of Justice. The respondent State, on the other hand, maintained that detention occurred "by operation of law" following the judicial decision placing a recidivist at the Government ’ s disposal and represented "the principal method of implementing" such a decision: it was only release that required "a Ministerial decision". The "task entrusted to the Minister ... by the Act of 1 July 1964" was said to be confined "to determining the modalities for the execution of a sentence involving deprivation of liberty", for example "by suspending", on such conditions as he determined, "the detention entailed by such a penalty ... or by revoking a decision to grant conditional release taken by him". Accordingly, so it was argued, "by not deciding to release, the Minister does not decide to detain". 37. This is a controversial point in Belgian law. The Government based themselves to a large extent on a passage in the drafting history of the predecessor of the 1964 Act, the Act of 9 April 1930 ("placing at the Government ’ s disposal is detention in an establishment designated by Royal Decree", Pasinomie 1930, p. 88, column 2), but there are other passages to a different effect ("placing at the Government ’ s disposal is independent of the detention which it may entail": Chambre des représentants, 1927-1928 session, document no. 11). The Commission ’ s Delegate pointed out that the argument was inconsistent with the letter of section 25 of the 1964 Act (see paragraph 21 above: "if necessary") and, above all, with the recent administrative practice of the Ministry of Justice, since approximately two-thirds of the recidivists and habitual offenders who are placed at the Government ’ s disposal remain at liberty (see paragraph 24 above, paragraph 16 of the Commission ’ s report and the verbatim record of the hearings on the morning of 20 October 1981). Even when an offender is not set free after serving his initial sentence - something which did not occur in the instant case and is nowadays exception -, this is apparently the result of Ministerial instructions to the effect that he should be detained. At any rate, that such is the position emerges from paragraph 6 of a circular of 20 December 1930, which was supplied by the Government ("Convicted persons who have been placed at the Government ’ s disposal after expiration of their sentence must be the subject of a notification to the Minister of Justice so that the question of their detention may be considered"), and from the summary of the facts appearing in one of the Commission ’ s decisions (1 October 1975, application no. 6697t/74, R. V. v. Belgium, which was subsequently joined to Mr. Van Droogenbroeck ’ s first application, no. 6989/75). Besides, it is understandable that express instructions of this kind are needed whenever the transfer of an individual who has to leave another prison for Merksplas is to be effected. In any event, the Ministerial decisions of 11 January and 11 September 1975 revoking the conditional release granted to Mr. Van Droogenbroeck did order that he be "detained" (see paragraphs 12-13 above). 38. Be that as it may, one must look beyond the appearances and the language used and concentrate on the realities of the situation (see notably, mutatis mutandis, the Deweer judgment of 27 February 1980, Series A no. 35, p. 23, par. 44). This is a matter in which the Government enjoy a wide measure of discretion. Case-law and practice certainly confirm the meaning suggested by the text of section 25 of the 1964 Act ("if necessary") and the actual phrase "placing at disposal". In a judgment of 4 April 1978, the Belgian Court of Cassation observed that "execution of the penalty" in question "is to a large extent a matter for the discretion" of the Minister of Justice (Pasicrisie 1978, I, p. 861). One finds that far less fetters are imposed on Ministerial decisions by a court ’ s decision to apply the Social Protection Act than in the analogous area of the system of placing vagrants "at the Government ’ s disposal" (Act of 27 November 1891; see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 24-25, par. 37, and pp. 33-34, par. 61). In short, to adopt the language used by the Commission ’ s Delegate, "the court decision does not order the detention" of recidivists and habitual offenders: it "authorises" it. 39. In these circumstances, the Court has to consider whether there was a sufficient connection, for the purposes of Article 5 (art. 5), between the last-mentioned decision and the deprivation of liberty at issue. This question must receive an affirmative reply since the Minister ’ s discretion is exercised within a framework set both by the Act and by the sentence pronounced by the "competent court". In this respect, the Court notes that, according to Belgian case-law, a judgment which sentences the person concerned to imprisonment and, by way of a supplementary or accessory penalty, places him at the Government ’ s disposal pursuant to section 22 or section 23 of the 1964 Act constitutes "an inseparable whole" (see paragraph 21 above; Court of Cassation, 17 June 1975, Pasicrisie 1975, I, p. 999). There are two components to the judgment: the first is a penalty involving deprivation of liberty which the offender must undergo for a period specified in the court decision, and the second is the placing of the offender at the Government ’ s disposal, the execution of which may take different forms ranging from remaining at liberty under supervision to detention. The choice between these forms of execution is a matter for the discretion of the Minister of Justice. Nevertheless he does not enjoy an unlimited power in making his decision: within the bounds laid down by the Act, he must assess the degree of danger presented by the individual concerned and the short- or medium-term prospects of reintegrating him into society. 40. In fact, sight must not be lost of what the title and general structure of the 1964 Act, the drafting history and Belgian case-law show to be the objectives of this statute, that is to say not only "to protect society against the danger presented by recidivists and habitual offenders" but also "to provide [the Government] with the possibility of endeavouring to reform [them]" (Court of Cassation, 11 December 1933, Pasicrisie 1934, I, p. 99). Attempting to achieve these objectives requires that account be taken of circumstances that, by their nature, differ from case to case and are susceptible of modification. At the time of its decision, the court can, in the nature of things, do no more than estimate how the individual will develop in the future. The Minister of Justice, for his part, is able, through and with the assistance of his officials, to monitor that development more closely and at frequent intervals but this very fact means that with the passage of time the link between his decisions not to release or to re-detain and the initial judgment gradually becomes less strong. The link might eventually be broken if a position were reached in which those decisions were based on grounds that had no connection with the objectives of the legislature and the court or on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5 (art. 5) (see, notably, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 19, par. 43). Such a situation did not obtain in the present case. The Belgian authorities showed patience and trust towards Mr. Van Droogenbroeck: notwithstanding his conduct, they gave him several opportunities to mend his ways (see paragraphs 10, 11, 12 and 16 above). The manner in which they exercised their discretion respected the requirements of the Convention, which allows a measure of indeterminacy in sentencing and does not oblige the Contracting States to entrust to the courts the general supervision of the execution of sentences. 41. Before the Commission (see paragraphs 27 in fine and 57 of the report), the applicant also contended that his detention was neither "lawful" nor effected "in accordance with a procedure prescribed by law", within the meaning of Article 5 par. 1 (art. 5-1), arguing that the Minister of Justice had appropriated to himself a power which section 25 of the 1964 Act conferred on the Government as a whole. On this point the Court, like the Commission, confines itself to observing that in Belgium - as in other Contracting States - it is traditional for the execution of sentences and other measures pronounced by criminal courts to fall within the province of the Minister of Justice. The Court sees no reason to doubt that that Minister was, by virtue of the general principles of Belgian public law concerning the attribution and the allocation of powers, an appropriate authority to act in Mr. van Droogenbroeck ’ s case. 42. There has accordingly been no violation of Article 5 par. 1 (art. 5-1). II. THE ALLEGED VIOLATION OF ARTICLE 5 PAR. 4 (art. 5-4) 43. The applicant also complained that when he was detained he was unable to take any proceedings satisfying the requirements of paragraph 4 of Article 5 (art. 5-4), which reads: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." The Court has to examine this complaint although there was no breach of paragraph 1 (art. 5-1); on this point, it refers to its case-law, and in particular to its De Wilde, Ooms and Versyp judgment of 18 June 1971 (Series A no. 12, pp. 39-40, par. 73). A. The Government ’ s principal plea 44. The Government argued in the first place that the proceedings conducted in 1970 and 1971 before the Bruges criminal court, the Ghent Court of Appeal and the Court of Cassation (see paragraph 9 above) met the requirements of Article 5 par. 4 (art. 5-4). They relied, inter alia, on the following passage in the above-mentioned judgment of 18 June 1971 (ibid., p. 40, par. 76): "At first sight, the wording of Article 5 par. 4 (art. 5-4) might make one think that it guarantees the right of the detainee always to have supervised by a court the lawfulness of a previous decision which has deprived him of his liberty. ... Where [that] decision ... is one taken by an administrative body, there is no doubt that Article 5 par. 4 (art. 5-4) obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case the supervision required by Article 5 par. 4 (art. 5-4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after "conviction by a competent court" (Article 5 par. 1 (a) of the Convention) (art. 5-1-a)." (see also the above-mentioned Engel and others judgment, Series A no. 22, p. 32, par. 77). 45. However, as the Court has recently pointed out, this passage "speaks only of ‘ the decision depriving a person of his liberty ’; it does not purport to deal with an ensuing period of detention in which new issues affecting the lawfulness of the detention might subsequently arise" (see the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 22, par. 51). Besides, the De Wilde, Ooms and Versyp judgment had taken into account, under Article 5 par. 4 (art. 5-4), not only the initial decisions to detain the three applicants for vagrancy (Series A no. 12, pp. 40-43, par. 74-80) but also the procedure for the examination of their requests for release to the extent that they raised questions concerning the lawfulness of the continuation of their detention (ibid., pp. 43-44, par. 81-84). The "detention" of vagrants falls within sub-paragraph (e) of Article 5 par. 1 (art. 5-1-e) and the same applies to the "detention" of persons of unsound mind. However, "the reasons initially warranting confinement of this kind may cease to exist", a fact from which the Court drew a consequence of some importance: "... it would be contrary to the object and purpose of Article 5 (art. 5) ... to interpret paragraph 4 ... as making this category of confinement immune from subsequent review of lawfulness merely provided that the initial decision issued from a court. The very nature of the deprivation of liberty under consideration would appear to require a review of lawfulness to be available at reasonable intervals." (see the Winterwerp judgment of 24 October 1979 and the above-mentioned judgment in the case of X v. the United Kingdom, Series A no. 33, p. 23, par. 55, and no. 46, pp. 22-23, par. 52) 46. The argument of the respondent State ran as follows. The placing of recidivists and habitual offenders at the Government ’ s disposal presented none of the features that called for the application of these precedents. It amounted to a deprivation of liberty ordered by a court of law for a prescribed period. It would not be valid unless objective conditions, which were exhaustively listed in sections 22 and 23 of the 1964 Act and were, in principle, not susceptible of modification with the course of time, were met on the day when the penalty was imposed; its validity could not be brought into question by any subsequent event. The measure thus authorised by the legislature, utilised by the courts and implemented by the Minister of Justice in pursuance of his role of "individualising this penalty" was certainly based on the need to protect society against the activities of recidivists and habitual offenders, but neither Belgian law nor the Convention stipulated that detention could continue only if a danger to society would persist in the event of the individual ’ s release. The Commission ’ s opinion to the contrary confuses lawfulness with appropriateness, two radically different concepts, and would mean that every convicted criminal ought to be entitled to contest at some point of time the appropriateness of his detention, a position that did not obtain in any country. 47. The Court recalls that the scope of the obligation undertaken by the Contracting States under paragraph 4 of Article 5 (art. 5-4) "will not necessarily be the same in alle circumstances and as regards every category of deprivation of liberty" (see the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 22, par. 52). It has not overlooked the fact that in the present case the detention at issue was covered only by sub-paragraph (a) of paragraph 1 (art. 5-1-a) and not by sub-paragraph (e) (art. 5-1-e), as in the Winterwerp and the De Wilde, Ooms and Versyp cases, or by both of those sub-paragraphs taken together, as in the case of X v. the United Kingdom (ibid., pp. 17-18, par. 39). Nevertheless, in this context the nature and purpose of a given type of "detention" are of more importance than is the place which it occupies in the structure of the Convention. The system of placing recidivists and habitual offenders at the Government ’ s disposal was established with specific objectives in mind. The position taken by the Court of Cassation is that the measure in question, although assimilated to a penalty, is designed not only to protect society but also to provide the executive with an opportunity of endeavouring to reform the individuals concerned (see paragraph 40 above). Except in the case of the commission of one indictable offence after another (section 22 of the Act), the court ordering the penalty must give reasons for its decision (section 24) and must, in particular, indicate "in specific and precise terms" why it considers that the accused, who in the eyes of the law is classified as a recidivist, manifests "a persistent tendency to crime", within the meaning of section 23 of the Act (Court of Cassation, 3 January 1962, Pasicrisie 1962, I, p. 526; see paragraph 9 above). In practice, the court ’ s decision provides the Minister of Justice "with initial authority for detention for a period ... whose actual duration" - "from nothing to ten years" - is striking for it relatively indeterminate character and will vary, in principle, according to the treatment required by the offender and the demands of the protection of society (paragraph 64 of the Commission ’ s report and final decision of 5 July 1979 on the admissibility of the application). The detention which may be entailed by a placing at the Government ’ s disposal occurs only "if necessary" (section 25 of the Act), words which the Court of Cassation has taken as synonymous with the phrase "if the protection of society so requires" ( 4 April 1978, Pasicrisie 1978, I, p. 861). As the Commission pointed out in paragraph 66 of its report, this system is fundamentally different from that - on which the Court does not have to express an opinion on this occasion - of the conditional release of prisoners sentenced by a court to a period of imprisonment imposed by the court as being appropriate to the case. The discretion enjoyed by the Minister of Justice under the 1964 Act implies that he should, throughout the period of application of the measure, direct his mind to the need to deprive or continue to deprive the person concerned of his liberty or to the absence or disappearance of such a need. "Persistent tendency to crime" and "danger to society" are essentially relative concepts and they involve monitoring the development of the offender ’ s personality and behaviour in order to adapt his situation to favourable or unfavourable changes in his circumstances. To a certain extent this was recognised both by the Belgian legislature when it made it possible for the Court of Appeal to grant release from the effects of the initial judgment (section 26 of the Act; see paragraph 23 above) and by the Government when they set up the Recidivists Board and associated "medical officers specialised in psychology" with the decisions taken by the Minister (see paragraphs 21 and 22 above). It must therefore be asked whether the very logic of the Belgian system does not require subsequent judicial review, at reasonable intervals, of the justification for the deprivation of liberty. If one were to consider such justification to have been established once and for all at the moment of conviction, this would amount, in a way, to a presumption that the detention would produce no useful result. 48. Admittedly, the Belgian Court of Cassation, in a judgment of 4 April 1978, rejected this argument in favour of the theory of "incorporated supervision" (Pasicrisie 1978, I, p. 862; and see paragraph 44 above). However, for the purposes of Article 5 par. 4 (art. 5-4), the "lawfulness" of an "arrest or detention" has to be determined in the light not only of domestic law but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 par. 1 (art. 5-1) (see, mutatis mutandis, the above-mentioned X v. the United Kingdom, judgment, Series A no. 46, p. 25, par. 57, to be read in conjunction with the above-mentioned Winterwerp judgment, Series A no. 33, p. 17, par. 39, and pp. 19-20, par. 45). Quite apart from conformity with domestic law, "no detention that is arbitrary can ever be regarded as ‘ lawful ’" for the purposes of paragraph 1 (art. 5-1) (see, amongst others, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 19, par. 43). This is the limit which the Minister of Justice must not exceed in the exercise of the wide discretion he enjoys in executing, or implementing, the initial court decision. This requirement is rendered all the more compelling by the seriousness of what is at stake, namely the possibility that the individual may be deprived of his liberty for up to ten years (section 23 of the Act) or even longer (section 22). This type of detention would no longer be in conformity with the Convention if it ceased to be based on reasons that are plausible and consistent with the objectives of the Social Protection Act; for the purposes of Article 5 (art. 5), it would become "unlawful". It follows that the individual concerned must be entitled to apply to a "court" having jurisdiction to determine whether or not there has been a violation of that kind; this possibility must be open to him during the course of his detention - once a certain period has elapsed since the detention began and thereafter at reasonable intervals (see, mutatis mutandis, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, pp. 22-23, par. 52) - and also at the moment of any return to detention after being at liberty. 49. It is true that Article 5 par. 4 (art. 5-4) does not guarantee a right to judicial control of such scope as to empower the court, on all aspects of the case, including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which, under the Convention, are essential for the "lawful" detention of a person pursuant to Chapter VII of the 1964 Act; this is all the more so because, with the exception of the status of recidivist or habitual offender itself, the conditions initially justifying that detention may change to such an extent that they cease to exist (see, mutatis mutandis, the above-mentioned X v. the United Kingdom judgment, Series A nr. 46, p. 25, par. 57-58). In the instant case, the Convention required an appropriate procedure allowing a court to determine "speedily", on application by Mr. Van Droogenbroeck, whether the Minister of Justice was entitled to hold that detention was still consistent with the object and purpose of the 1964 Act (ibid.). For the purposes of Article 5 par. 4 (art. 5-4), this was not simply a question of expediency but one that bore on the very "lawfulness" of the deprivation of liberty at issue. B. The Government ’ s alternative plea 50. The Government pleaded in the alternative that several remedies satisfying the requirements of Article 5 par. 4 (art. 5-4) would have been available to the applicant, namely: (i) instituting or causing to be instituted a prosecution for arbitrary detention; (ii) referring to the Ghent Court of Appeal any dispute between himself and the ministère public regarding the execution of the judgment of 20 October 1970; (iii) applying to that Court of Appeal for release from the effects of the measure imposed on him; (iv) applying to the President of the court of first instance in his capacity of juge des référés (judge hearing urgent applications); (v) bringing an action based directly on Article 5 par. 4 (art. 5-4). At the hearings of 20 October 1981 and in their supplementary memorial of February 1982 (paragraphs 44-45), the Government withdrew their claim that Mr. Van Droogenbroeck could, in addition, have lodged with the Conseil d ’ État a plea that the decision to detain him was a nullity. Neither does the Recidivists Board (see paragraphs 22 above) fall to be considered in connection with Article 5 par. 4 (art. 5-4). The Board is not a "court" within the meaning of the Convention, does not afford to detainees who appear before it the guarantees of judicial procedure determine the "lawfulness" of the "detention" of the individuals concerned or, a fortiori, to "order" the release of such of them whose deprivation of liberty it may consider "unlawful" (see, notably, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 23, par. 53, and p. 26, par. 61, and the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 76, par. 200). 51. The object of the first remedy mentioned by the Government (see paragraphs 26 and 50 above) is a finding not only that the detention is unlawful but also that an offence has been committed, ex hypothesi in the case of detention of a recidivist or habitual offender, by a civil servant, a public official or the governor of a prison establishment (Article 147 of the Criminal Code and Article 609 of the Code of Criminal Procedure), in other words a finding of personal guilt. In addition, the "court" (if any) hearing the case - assuming that the proceedings were terminated "speedily" - could at most convict the offender; it could not itself "order" the victim ’ s release. Finally, the action might remain without effect if the accused sheltered behind the defence of "orders from the competent authority" (Article 70 of the Criminal Code), that is to say the Minister of Justice. 52. As regards the second alleged remedy, the Ghent Court of Appeal did in fact hold, in 1897 and 1914, that disputes between the ministère public and a detainee concerning the execution of a penal sentence could be referred to the court which passed it (see paragraph 28 above; paragraphs 35, 39 and 71 in fine of the Commission ’ s report; paragraph 53 of the Government ’ s memorial). However, as the Government admitted in reply to a question from the Court, those old judgments have remained isolated decisions and have not been confirmed by later jurisprudence. In any event, they did not concern the system of social protection. They cannot therefore be relied on as establishing the existence of a remedy as required by Article 5 par. 4 (art. 5-4). 53. The third remedy invoked, the application for release from the effects of the measure in question, provided for by section 26 of the 1964 Act (see paragraph 23 above), undoubtedly involves proceedings before a "court" and is accompanied by the guarantees of judicial procedure; however, when the person concerned is at liberty, what he will be seeking by means of such an application will be the complete cancellation of the sentence placing him at the Government ’ s disposal. It is therefore the measure in its entirety which will be reviewed and not just the question of detention, and the issue will be not so much the "lawfulness" of the detention as "the expediency of early termination of the penalty" imposed by a judgment which is no longer open te appeal (paragraph 33 of the Government ’ s supplementary memorial, and Court of Cassation, 15 February 1977 - paragraph 14 above). As the Commission (paragraph 74 in fine of the report) and the applicant (written observations of February 1982) pointed out, the Court of Appeal would not be in a position to "make a distinction between the deprivation of liberty and such measures of guidance, assistance or supervision" as might still be necessary, "even if the current behaviour of the individual concerned were no longer in any way such as to justify in law continuation of the detention". Moreover, the intervals of three, or even five, years that must elapse between two applications to the court appear too long to be regarded as "reasonable" for the purposes of Article 5 par. 4 (art. 5-4) (see paragraph 48 above). The Court notes incidentally that the examination of Mr. Van Droogenbroeck ’ s applications took seven months on the first occasion (12 May - 13 December 1976, see paragraph 14 above) and six months on the second (16 September 1979 - 18 March 1980, see paragraph 18 above), a fact that sits ill with the notion of "speedily". 54. According to the Government, the juge des référés (see paragraph 29 above) represents "the last bastion, if one were needed, of individual freedoms" in the Belgian legal system. An application may be made to him when the matter is urgent and on the basis of the general jurisdiction conferred on him by Article 584 of the Judicial Code to give "a provisional ruling ... in all matters except those which are excluded by law from the competence of the courts". The juge des référés clearly has the characteristics of a "court" for the purposes of Article 5 par. 4 (art. 5-4). It would also appear to be within the very nature of his function to give a ruling "speedily" and, although he gives only a "provisional" decision, it is one that is "immediately enforceable, notwithstanding any possible appeal" (paragraph 56 of the Government ’ s memorial). The extent of his jurisdiction is expressed in wide terms and the drafting history of, and the official statement of reasons accompanying, the Judicial Code indicate that it includes all cases, civil, administrative and penal, within the competence of the courts, save those for which a special procedure is laid down under substantive or procedural criminal law. According to the information before the Court, the exception mentioned at the end of Article 584 relates to matters which are the prerogative of the executive, but would not prevent his finding that given acts on the part of such authorities were unlawful. The Court also recognises the particular importance to be attached to the case-law cited by the Government. It notes, in particular, that on 22 February, 20 May and 14 August 1980, the Brussels juge des référés "enjoined" the defendant, the Belgian State, to "release forthwith" persons whose detention he considered to be "unlawful" (Journal des Tribunaux, 1980, pp. 578-580). However, the orders in question post-date both the return to detention ( 21 December 1977 ) and, with the exception of the earliest of them, the release of Mr. Van Droogenbroeck ( 18 March 1980 ). Furthermore, whilst these orders concerned measures that deprived persons of their liberty, they did not relate to the 1964 Act: the first and third were in respect of the placing of non-Belgian subjects at the Government ’ s disposal under the legislation on the control of aliens; the second, against which the Belgian State has lodged an appeal, was in respect of the revocation of conditional release. The same does not apply to a more recent order [*] : on 16 November 1981, the Brussels juge des référés held that he had jurisdiction to hear an application inviting him to direct the release of an individual detained, pursuant to section 14 of the 1964 Act, in the psychiatric wing of a prison; he decided, however, that the circumstances of the case were such that a provisional order should not be made. On the other had, on 10 July 1981 the President of the Nivelles court of first instance held that he did not have jurisdiction to order the restitution of a wireless transmitter and aerial which had been seized on 3 June 1981 following a complaint by the Telegraph and Telephone Office [*]. This decision was confirmed by the Brussels Court of Appeal on 18 January 1982; it referred to both Belgian and French case-law, pre-dating the Judicial Code, and held that "a civil court, and hence the juge des référés, has no jurisdiction over steps taken in the course of criminal investigations" [*]. In the light of the foregoing considerations, recourse to the juge des référés does not, in the opinion of the Court, satisfy the requirements of Article 5 par. 4 (art. 5-4) of the Convention in the present case for the following reasons. In the first place, this is a matter which at present turns on issues of Belgian domestic law that are unsettled (see, mutatis mutandis, the above-mentioned Deweer judgment, Series A no. 35, p. 28 in fine), with case-law of very recent date which is still being developed and is the subject of debate. The Government have challenged that case-law before the national courts; they did not rely on it before the Commission, either in connection with Article 26 (art. 26) of the Convention or in connection with the merits. The existence of a remedy must be sufficiently certain, failing which it will lack the accessibility and effectiveness which are required by Article 5 par. 4 (art. 5-4) (see, mutatis mutandis, the above-mentioned De Wilde, Ooms and Versyp judgment, Series A no. 12, p. 34, par. 62). At least at the time of the events in question, the possibility of applying to the juge des référés on a matter covered by the 1964 Act did not satisfy this condition. In the second place, since the decision by the juge des référés can contain only a "provisional" ruling, it is given without prejudice to the merits of the case (see Article 1039 of the Judicial Code and, mutatis mutandis, the above-mentioned Deweer judgment, Series A no. 35, p. 28, (a), in fine) and therefore does not have the authority of res judicata. Furthermore, the state of the case-law is not yet such as to establish with adequate clarity whether the review undertaken by the juge des référés meets, from the point of view of its scope, the requirements of Article 5 par. 4 (art. 5-4) regarding a decision on "lawfulness" (see paragraph 49 above). It is thus necessary to know which court is empowered to dispose finally of the matter "on the merits". The Court raised this question at the hearings and the Government replied that it would be the court of first instance. However, they did not produce any evidence in support of this statement or as to how, at the present time, the requirement of a "speedy" decision would be satisfied. 55. Some of the preceding observations also apply to the fifth and last remedy mentioned by the Government. In a judgment of 28 February 1979, the Mons Court of Appeal held that, in the absence of any special provision and by virtue of Article 568 of the Judicial Code, it was for the court of first instance to hear applications challenging the validity of a deprivation of liberty that are based directly on Article 5 par. 4 (art. 5-4) of the Convention (Journal des Tribunaux, 1979, pp. 358-361). The case in question concerned the detention of an individual who, "at the time when the facts occurred", was "in a serious state of mental derangement rendering him incapable of regulating his conduct", this being a matter governed by Chapters II to V (section 7 to 20) of the 1964 Act. The Court of Cassation quashed that judgment on 14 February 1980, but for reasons unconnected with the admissibility of the application, which indeed it appears to have accepted implicitly (Revue de droit pénal et de criminologie, 1980, pp. 765-790, with submissions to the same effect by the ministère public). Again, in a judgment of 22 August 1974 (Military Court, Journal des Tribunaux, 1974, pp. 611-612) and a decision of 10 June 1976 (Chamber of field court-martial, ibid., 1976, pp. 646-647), it has been recognised, on the basis of Article 5 par. 4 (art. 5-4), that there is nothing to prevent a serviceman placed in detention on remand by the "Commission judiciaire" from applying for release to the court-martial or the Military Court, as the case may be. Those precedents stated that the powers of those courts were not derived from "current domestic legislation" but were a "creation of case-law", the origin whereof lay "in an international treaty and in the principle that priority must be accorded to rules of international treaty law"; accordingly, the scope of those powers did not go beyond the requirements of Article 5 par. 4 (art. 5-4) (review of lawfulness, but not of expediency). The Court has already had the occasion to draw attention to the importance and the consequences of incorporating the Convention into domestic law (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 91, par. 239) and of the direct applicability of the Convention (see the above-mentioned De Wilde, Ooms and Versyp judgment, Series A no. 12, p. 46, par. 95, and the Van Oosterwijck judgment of 6 November 1980, Series A no. 40, p. 16, par. 33). However, the respondent State "is not aware of any decision on an application based directly on Article 5 par. 4 (art. 5-4) of the Convention, lodged by a recidivist placed at the Government ’ s disposal" (paragraph 39 of the supplementary memorial). Of those applications it mentions, the oldest (1974/1976) concern the detention of servicemen on remand. The judgment delivered by the Mons Court of Appeal on 28 February 1979 did, in fact, relate to a form of deprivation of liberty covered by Chapters II to V - and not, as in the present case, Chapter VII - of the Social Protection Act. However, this was an isolated decision which has not been expressly confirmed by the Court of Cassation on the point at issue and which anyway post-dates Mr. Van Droogenbroeck ’ s return to detention. Here again, Belgian case-law appears to be in a process of evolution and the extent to which it will in the future affirm the existence of a judicial power of review is uncertain. 56. The Court by no means excludes the possibility that, once the significant developments described above have come to their conclusion, a result that meets the requirements of Article 5 par. 4 (art. 5-4) might be achieved by combining an application to the juge des référés with an action "on the merits" based on Article 5 par. 4 (art. 5-4), or by exercising these two remedies concurrently or successively (see, mutatis mutandis, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 26, par. 60). Nevertheless, it is obliged to find that such a result was not attained in the instant case; there has accordingly been a violation of Article 5 par. 4 (art. 5-4). III. THE ALLEGED VIOLATION OF ARTICLE 4 (art. 4) 57. Mr. Van Droogenbroeck also relied on Article 4 (art. 4), which reads: "1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article (art. 4) the term "forced or compulsory labour" shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 (art. 5) of [the] Convention or during conditional release from such detention; ..." 58. The applicant ’ s first allegation was that by being placed at the Government ’ s disposal he was held in "servitude", contrary to paragraph 1, in that he was subjected "to the whims of the administration". The situation complained of did not violate Article 5 par. 1 (art. 5-1) (see paragraph 42 above). Accordingly, it could have been regarded as servitude only if it involved a "particularly serious" form of "denial of freedom" (see paragraphs 79-80 of the Commission ’ s report), which was not so in the present case. 59. Mr. Van Droogenbroeck further complained that, contrary to paragraph 2 of Article 4 (art. 4-2), he was "forced" to work in order to save 12,000 BF. According to the Government, he was simply "invited" to work. The Court considers that it may leave this question of fact open. In practice, once release is conditional on the possession of savings from pay for work done in prison (see paragraphs 13, 16 and 17 above), one is not far away from an obligation in the strict sense of the term. However, it does not follow that the complaint is well-founded, for failure to observe Article 5 par. 4 (art. 5-4) (see paragraph 56 above) does not automatically mean that there has been failure to observe Article 4 (art. 4): the latter Article authorises, in paragraph 3 (a) (art. 4-3-a), work required to be done in the ordinary course of detention which has been imposed, as was here the case, in a manner that does not infringe paragraph 1 of Article 5 (art. 5-1). Moreover, the work which Mr. Van Droogenbroeck was asked to do did not go beyond what is "ordinary" in this context since it was calculated to assist him in reintegrating himself into society and had as its legal basis provisions which find an equivalent in certain other member States of the Council of Europe (see paragraph 25 above and, mutatis mutandis, the above-mentioned De Wilde, Oms and Versyp judgment, Series A no. 12, pp. 44-45, par. 89-90). 60. Accordingly, the Belgian authorities did not fail to observe the requirements of Article 4 (art. 4). IV. THE APPLICATION OF ARTICLE 50 (art. 50) 61. At the hearings, one of the applicant ’ s lawyers requested the Court, should it find a violation of the Convention, to afford his client just satisfaction under Article 50 (art. 50). He declared that he would leave the item of "pecuniary and non-pecuniary damage" to the Court ’ s discretion; as regards "fees and expenses", he listed these in a note which the Secretary to the Commission transmitted to the Registrar on 14 November 1981. The Government did not indicate their position on this matter. 62. Accordingly, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision and must be reserved; in the circumstances of the case, the Court considers that the question should be referred back to the Chamber in accordance with Rule 50 par. 4 of the Rules of Court. | The Court held that there had been no violation of Article 4 (prohibition of slavery or forced labour) of the Convention. It stressed that the applicant’s situation could have been regarded as servitude only if it had involved a particularly serious form of denial of freedom, which had not been the case. Further, the work which he had been asked to do had not gone beyond what was ordinary in that context since it had been calculated to assist him in reintegrating himself into society. |
903 | Persons arrested or under criminal prosecution | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Legal provisions 21. The Courts Act (Gerichtsverfassungsgesetz) sets out provisions on reporting on court hearings and on judges ’ powers to issue orders to ensure their proper conduct. The relevant provisions read as follows: Section 169 “ Hearings before the adjudicating court, including the pronouncement of judgments and rulings, shall be public. Audio, television or radio recordings as well as audio and film recordings intended for public presentation or publication are not permitted. ... Section 176 The presiding judge is responsible for maintaining order at hearings. Section 177 Parties, accused persons, witnesses, experts or persons not participating in a hearing who fail to follow orders given to maintain order can be removed from the courtroom or taken into detention and held for a determined period of time; such a period may not exceed twenty-four hours. Decisions on measures pursuant to the first sentence in respect of persons who are not participants in the hearing shall be made by the presiding judge and in all other cases by the court. ” B. Case-law of the Federal Constitutional Court 22. The Federal Constitutional Court established in a decision of 19 December 2007 (no. 1 BvR 620/07) on video - recording in criminal proceedings that based on section 176 of the Courts Act a presiding judge can impose restrictions, inter alia, on the taking of photographs and making video - recordings. In doing so, the presiding judge has to balance the public interest in being informed and the personality rights of the defendant, giving consideration to the circumstances of the case. An essential criterion is the gravity of the offence at stake and special circumstances which may cause a rise in public interest. It noted that the public interest weighed more when the gravity of the offence clearly differed from acts of common criminality. That applied even if the defendant had never been in the public eye before. As to a defendant ’ s personality rights, account had to be taken of the fact that criminal proceedings caused an unusual and burdensome situation which could not be avoided as attendance at them was mandatory. In particular in respect of defendants, a possible pillory effect or implications on the presumption of innocence and/or later social rehabilitation had to be considered. 23. The Federal Constitutional Court has decided on several applications for interim relief concerning judicial orders banning the publication of pictures and/or photographic journalism in which a defendant could be identified. The decisions stressed that the presumption of innocence meant that reports on criminal proceedings which included photographs had in general to be restrained and, at the very least, very balanced. The nature and gravity of the offence at issue might not only cause a higher level of public interest but also a higher risk of the stigmatisation of the defendant (decision of 27 November 2008, no. 1 BvQ 46/08). A confession by a defendant might impact the balancing process (decision of 20 December 2011, no. 1 BvR 3048/11) as could a possible lack of criminal responsibility due to mental health problems (decision of 30 March 2012, no. 1 BvR 711/12). In a decision of 9 September 2016 the Federal Constitutional Court has further found that an order to pixelate pictures largely respected the public interest in information (no. 1 BvR 2022/16). THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 25. The applicant companies complained that the judicial order banning the publication of images by which S. could be identified had violated their right to freedom of expression as provided in Article 10 of the Convention, which reads, so far as relevant, as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ( ... ) 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ( ... ) for the protection of the reputation or rights of others ( ... ) .” A. Admissibility 26. The Court observes that the applicant companies raised their complaint in substance before the domestic courts and that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The Government 27. The Government stated that the presiding judge ’ s order had been based on section 176 of the Courts Act. It had been the presiding judge ’ s duty to issue instructions to maintain order at the court hearing, which also included ensuring the personality rights of S. and other parties involved. 28. Article 10 of the Convention had not been violated as the presiding judge had maintained a fair balance between the interests affected. He had taken account to a sufficient degree of the public interest in being informed and had been entitled to give precedence to the interests of S. in view of the circumstances of the case. It had been obvious that the reports on the proceedings against S. had focused primarily on satisfying public demand for sensationalist stories about the gruesome details of the crime. The restriction on publishing images of S. had been justified. S. had been utterly unknown to the public. He had merited an increased degree of protection against reporting as he suffered from a psychiatric disorder, as established by a psychiatric report in October 2010. 29. The Government emphasised that the pictures taken in the courtroom had shown S. in handcuffs, next to police officers or his defence lawyer. Disseminating pictures of that kind, where he could be identified, would have increased the pressure on him. His interests could not be given less weight in view of his confession on the first day of the hearing, bearing in mind the importance of the presumption of being innocent until proven guilty. (b) The applicant companies 30. The applicant companies argued that the court order had had no legal basis in section 176 of the Courts Act. 31. According to the applicant companies, the domestic courts had failed in the present case to recognise the importance of the public interest in being informed and to balance the interests in question properly. The very unusual circumstances of the crime at issue had attracted an enormous amount of public interest, which had not been limited to mere curiosity but had also involved issues such as the role of the parents of S. in the family conflict. The domestic courts had ignored the fact that S. had become known to the public by virtue of the crime he had committed. As to the presumption of innocence, the domestic courts had not paid enough attention to the fact that S. had not only made a confession on the first day of the hearing but also previously during the investigation. With regard to the presiding judge ’ s assumption that S. had needed particular protection, it had to be noted that the judge had nonetheless not taken any protective procedural measures, such as closing the proceedings to the public. Since the court had ordered that pictures of S. had to conceal his identity by technical means, the judicial ban had gone considerably beyond the requirements needed for the protection of the presumption of innocence. 32. The applicant companies highlighted that Article 10 of the Convention not only protected the substance of information and ideas, but also the form in which it was conveyed. 2. The Court ’ s assessment 33. The Court notes, and the parties agreed, that the judicial order given in the present case had constituted an interference with the applicant companies ’ right to freedom of expression as guaranteed by Article 10 of the Convention. 34. Such interference contravenes the Convention if it does not satisfy the requirements of paragraph 2 of Article 10. It therefore falls to be determined whether the interference was “prescribed by law”, pursued one or more of the legitimate aims in that paragraph and was “necessary in a democratic society ” for that aim or aims. (a) Prescribed by law 35. The Court reiterates that the relevant national law must be formulated with sufficient precision to enable the persons concerned – if need be with appropriate legal advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 42, ECHR 2000 ‑ I). It has, however, acknowledged the fact that frequently laws are framed in a manner that is not absolutely precise (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 143, 27 June 2017, and markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 30, Series A no. 165 ). 36. The Court notes that the wording of section 176 of the Courts Act lacks precision to a certain degree, stating that “ the presiding judge is responsible for maintaining order at hearings ”, thereby giving presiding judges broad discretion. The Court acknowledges that in light of the varied situations that presiding judges face in proceedings, it is impossible to establish precise requirements for the measures to take in order to maintain the proper conduct of hearings in every individual case. Furthermore, in the context of restrictions on reports using photographs in criminal proceedings, the aforementioned provision has been subject to interpretation by the Federal Constitutional Court which has elaborated criteria for presiding judges for the balancing of interests (see paragraphs 22 -23 above ). The role of adjudication vested in the national courts is precisely to dissipate such interpretational doubts as may remain ( Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 144). 37. Accordingly, the Court is satisfied that the interference was “ prescribed by law”. (b) Legitimate aim 38. It is not in dispute that the judicial order served to protect the personal rights of S. in the context of the trial in the course of which he was to be presumed innocent until proved guilty. The Court notes that the judicial order therefore pursued the legitimate aim of “protecting the rights of others”. ( c) Necessary in a democratic society ( i) General principles 39. The Court refers to the general principles set forth in its case-law for assessing the necessity of an interference with the exercise of freedom of expression which have been recently summarised in Bédat v. Switzerland [GC], no. 56925/08, § 48-54, ECHR 2016, and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 88-93, 10 November 2015. The Court has emphasised the essential role played by the press in a democratic society and in particular its duty to impart information and ideas on all matters of public interest. This duty extends to the reporting and commenting on court proceedings which contribute to their publicity and are thus consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. It is inconceivable that there can be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them ( Axel Springer AG v. Germany [GC], no. 39954/08, § 80, 7 February 2012 ). Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case ( Axel Springer AG, cited above, § 81). 40. However, the Court has also underlined that the press must not overstep certain bounds, regarding in particular the protection of the right to privacy of accused persons in criminal proceedings and the presumption of innocence ( Bédat, cited above, § 51; Egeland and Hanseid v. Norway, no. 34438/04, § 53, 16 April 2009; Eerikäinen and Others v. Finland, no. 3514/02, § 60, 10 February 2009 ). The fact that everyone charged with a criminal offence has the right under Article 6 § 2 of the Convention to be presumed innocent until proved guilty is of relevance for the balancing of competing interests which the Court must carry out (see News Verlags GmbH & Co.KG, cited above, § 56). 41. Lastly, the Court reiterates that the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any interference in the freedom of expression protected by Article 10 of the Convention, in particular when a balance has to be struck between conflicting private interests ( Bédat, cited above, § 54). Where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court ’ s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011; Axel Springer AG, cited above, § 88 ). 42. Where the right to freedom of expression is being balanced against the right to respect for private life, the criteria laid down in the Court ’ s case law have to be taken into account ( Couderc and Hachette Filipacchi Associés, cited above, § 93; Axel Springer AG v. Germany, cited above, §§ 89-95). The Court considers that the criteria thus defined are not exhaustive and should be transposed and adapted in the light of the particular circumstances of the case (compare Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 166). This applies in particular to cases where the presumption of innocence under Article 6 § 2 of the Convention comes into play (see, mutatis mutandis, Bédat, cited above, § 55). The Court has identified, as far as relevant for the present case, the following criteria in the context of balancing competing rights: the contribution to a debate of public interest, the degree to which the person affected is known, the influence on the criminal proceedings, the circumstances in which the photographs were taken, the content, form and consequences of the publication, as well as the severity of the sanction imposed. (ii) Application to the present case ( α ) The contribution to a debate of public interest 43. The Court has stressed the contribution made by photographs in the press to a debate of general interest ( News Verlags GmbH & Co.KG, cited above, § § 5 2 et seq.; and Eerikäinen and Others v. Finland, cited above, § 62). Depending on the degree of notoriety of the person concerned and the nature of the crime, the public might have an interest in having someone ’ s physical appearance disclosed ( see, mutatis mutandis, Österreichischer Rundfunk v. Austria, no. 35841/02, § 68, 7 December 2006). The Court acknowledges that there may be good reasons for prohibiting the publication of a suspect ’ s image, depending on the nature of the offence at issue and the particular circumstances of the case. 44. The crime at issue was brutal but had been committed within a family following a private dispute and in a domestic setting. There were no indications that it had gained particular notoriety. At the very beginning of the proceedings, when the judicial ban was ordered, media interest in the case had been rather limited, as pointed out by the presiding judge and stressed by the Government. The Court agrees with the domestic court ’ s assessment that there was a limited degree of public interest in the case. 45. The judicial order at issue did not restrict the content of reporting but concerned the publication of images by which S. could be identified. Therefore, the question arising here is whether the publication of such images was capable of contributing to the public debate on the case. 46. The Court does not consider that information on S. ’ s physical appearance could have contributed significantly to the debate on the case, in particular as there was no notoriety. Furthermore, there is no indication that S. ’ s physical appearance could have contributed to the assessment of issues such as the role of S. ’ s parents in the family conflict. ( β ) The degree to which the person affected was known 47. The Court notes that S. was undoubtedly not a public figure, but an ordinary person who was the subject of criminal proceedings. The public became aware of S. for the first time as a consequence of the crime he had committed. The fact that he was the subject of criminal proceedings, albeit for a very serious offence, cannot deprive him entirely of the protection of Article 8 of the Convention ( Bédat, cited above, § 76 and Eerikäinen and Others, cited above, § 66 ). 48. The fact that someone ’ s picture has already appeared in an earlier publication might be considered in the balancing process ( Axel Springer AG, cited above, § 92, and Österreichischer Rundfunk, cited above, § 65) and lead to the conclusion that there was no need to restrict the disclosure of an identity ( Egeland and Hanseid, cited above, § 59). 49. The Court notes that the presiding judge did not take into account previously published photographs of S. Considering the particular circumstances in which the judge issued the order, namely the point in time at the very beginning of the court hearing, and the necessary promptness of the decision-making process, he could not be expected to know of all prior publications at that time and consider them when balancing the competing interests. 50. The Court observes that S. ’ s physical appearance was known to the public as a consequence of the prior publications. However, most of the pictures of S. published prior to the criminal proceedings had apparently been taken many years before and showed him at a much younger age. In this regard, it must also be borne in mind that, until then, the German press had only occasionally reported on the case, with coverage basically limited to local media, as pointed out by the Government. Therefore, at the time of the proceedings against him, these pictures would not have enabled the public to identify S., and his identity cannot be said to have been already known to the public. (γ) The influence on the criminal proceedings 51. The Court notes that S. had confessed to the crime twice and that, according to the applicant companies (see paragraph 32 above), therefore he would no longer have benefitted from the presumption of innocence. However, a confession in itself does not remove the protection of the presumption of innocence. According to Article 6 § 2 of the Convention, everyone charged with a criminal offence must be presumed innocent until proved guilty according to law. The Court acknowledges that a confession might, under certain circumstances, have an impact on the balancing of the competing rights, as the Federal Constitutional Court observed (no. 1 BvR 3048/11, see paragraph 23 above). However, in the present case the Court is satisfied that the presiding judge took into consideration the fact that S. ’ s declarations and their credibility had to be assessed at the end of the main hearing, according to the domestic law, and not before it began. This applies all the more as S. suffered from a schizoid personality disorder, according to a psychiatric expert report obtained by the prosecutor ’ s office. The criminal court had to review carefully the confession in order to satisfy itself that it was accurate and reliable. ( δ ) The circumstances in which the photographs were taken 52. The Court has regard to the fact that images of an accused taken in a court room may show the person in a state of great distress and possibly in a situation of reduced self-control (see, mutatis mutandis, Egeland and Hanseid, cited above, § 61). The photographs of S. taken at the beginning of the hearing showed him in the courtroom in handcuffs, next to police officers or his defense. Under these circumstances, S. had no means to protect his privacy and to prevent journalists from obtaining images by which he could be identified. He did not voluntarily expose himself to the public, but was forced to attend the hearing. The Court finds that under the given circumstances there was a strong need to protect S. ’ s privacy. 53. The Court notes moreover that S. never sought to contact the media nor make any public comments. Quite the reverse, he expressly asked to be protected from reporting which identified him. S. did not consent to the taking of photographs. ( ε ) The content, form and consequences of the publication 54. The court order concerns the publication of images taken during the hearing by which S. could be identified. As pointed out by the Government, disseminating images showing S. in the courtroom, from which he could be identified, would have increased the psychological pressure on him. The Court notes that particular consideration should be given to the harmful effect which the disclosure of information enabling the identification of suspects, accused or convicted persons or other parties to criminal proceedings may have on these persons (see Principle 8 of the Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe, see paragraph 24 above ). Likewise, it has to be considered that a publication of images in which a defendant could be identified may have negative implications on a later social rehabilitation, if convicted, as the Federal Constitutional Court pointed out (no. 1 BvR 620/07, see paragraph 22 above). In the present case, it was also in the interest of safeguarding due process not to increase the psychological pressure on S., in particular in view of his personality disorder. ( ζ ) The scope of the order and the severity of the sanction 55. The material scope of the judicial order was limited to a ban on the publication of images from which S. could be identified. As to the temporal scope of the judicial order, the applicant companies submitted that the presiding judge had stated on 11 January 2011 that anyone who failed to comply with his order would no longer have the right to take photographs prior to the commencement of proceedings. They had concluded that the threat applied not only to the proceedings in question, but had to be considered as a general ban for the future. The court is not convinced by the applicants ’ argument that the judicial order could have an effect reaching beyond the first-instance hearing. The reasons given in the order explicitly refer to “orders on reporting on the main hearing” (“ Anordnung hinsichtlich der Bildberichterstattung über die Hauptverhandlung ”). In their objection of 31 January 2011 (see paragraph 17 above) the applicant companies themselves objected to a ban on reporting enabling identification “during the proceedings against (...) S.” (” für die Dauer des Prozesses gegen (...) S. ”). In view of the written version of the judicial order of 17 January 2011, and given that the presiding judge ’ s competence was limited to the hearing at issue under section 176 of the Courts Act, there is no support for the applicant companies ’ allegation that the scope of the order went beyond the proceedings against S. 56. The Court notes that the judicial order was not a particularly severe restriction on reporting. The taking of images as such was not limited. The order banned merely the publication of images from which S. could be identified. Any other reporting on the proceedings was not restricted. Thus, the presiding judge chose the least restrictive of several possible measures in order to safeguard due process and protect S. ’ s privacy. 57. As regards the consequences of a breach of the court order, the potential barring from further reporting on the case was equally limited to the proceedings against S. The Court does not consider that the order had a chilling effect on the applicant companies contrary to their rights under Article 10 of the Convention. ( η ) Conclusion 58. The Court recognises the careful balancing act carried out by the presiding judge, considering the various factors that are relevant under the Convention. Having regard to the criteria and considerations stated above, in particular the fact that the case concerned the publication of images taken in a criminal court hearing, the Court finds that the presiding judge clearly addressed the conflict between opposing interests and applied the domestic legal provision by carefully weighing the relevant aspects of the case. In view of the margin of appreciation available to the national authorities in the context of restrictions on reporting on criminal proceedings, the Court is satisfied that the presiding judge balanced the interests involved in conformity with Convention standards. The order was proportionate to the legitimate aim pursued as the presiding judge chose the least restrictive of several possible measures. Consequently, the Court concludes that the interference with the applicant companies ’ right to freedom of expression was “necessary in a democratic society”. 59. Accordingly, there has been no violation of Article 10 of the Convention. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It found that the national judge had carefully balanced the opposing interests. The order had been proportionate to the legitimate aim pursued, namely to protect the personality rights of the defendant – who was not a public figure – during his trial, in the course of which he was to be presumed innocent until proved guilty. The Court noted in particular that the order had not been a particularly severe restriction on reporting; taking images as such had not been limited. |
565 | Placement of Roma gypsy children in “special” schools | II. RELEVANT DOMESTIC LAW A. Elements of domestic law submitted by the Government 55. The work of the expert and rehabilitation committees examining learning abilities was, at the material time, regulated by Ministerial Decree no. 14/1994. (VI. 24.) MKM. This Decree dealt with procedural issues, regulated the operation of expert committees, secured the complexity of the expert and rehabilitation committee examinations, and required that the committees ’ recommendations be based on a complex assessment of the results of medical, pedagogical and psychological examinations. As to the methods of examination to be used, a protocol was outlined in a manual entitled “ Transfer Examinations” ( “ the Manual ” ), the publication of which was commissioned by the Ministry of Education in the 1980s. 56. The Manual states with emphasis that performance disorders may have two causes: the lack of knowledge or the lack of ability. It specifies the diagnostic signs indicating that the lack of knowledge is not caused by ability disorder as follows: where the lack of knowledge is explained by previous poor developmental conditions and poor socio-cultural environment; where the task can be simplified so as to suit the child ’ s level of knowledge and at that level no performance disorder can be observed; where during the examination the manner of making use by the child of the help provided by the examining teacher and the child ’ s capability to be oriented and taught indicate that his abilities are developable; and where the child ’ s social maturity, general knowledge and performance in life situations indicate that his abilities are intact. 57. Consequently, in examining a child ’ s task- solving performance, the interdependence of four factors shall always be examined, namely previous educational effects, the child ’ s scope of knowledge, the child ’ s abilities and his age-related maturity. 58. The Manual further contains the following guidelines: “Where a child from a socio-culturally retarded environment is being examined, tests free of cultural elements should be used. Certain tasks of a given test may be transformed in order to adjust them – at the same level of difficulty – to the child ’ s scope of knowledge ... When a socially disadvantaged child is being examined, special attention must be paid to his capability to learn in the examination situation ... ” 59. The Manual also draws experts ’ attention to the desirable procedures to be followed in examining a child of Roma ethnicity as follows: “The fact that a child does not know the language of school instruction or that his command of language does not attain the level of mother tongue would, in itself, constitute a serious disadvantage even if the child had no school integration problems resulting from social and/or cultural problems. Therefore, the special education or psychological examination of children coming from a disadvantageous social situation and underdeveloped linguistic environment should be carried out with special care. From a delay in speech development no conclusions concerning the child ’ s mental maturity should be drawn. In such cases the child ’ s practical intelligence should be assessed, or his cognitive abilities should be examined through non-verbal tasks.” 60. This protocol was reviewed and updated between 2004 and 2008 and a new Manual was published. In 2010 a new Ministerial Decree ( no. 4/2010. (I.19. ) OKM ) was issued for the regulation of the work of the pedagogical expert services. This Decree prescribes a uniform procedural order for expert and rehabilitation committees, and specifies the professional requirements to be met in carrying out the examinations, based on which expert opinions are drafted; moreover, in addition to the remedies formerly introduced, it provides for the involvement of an independent equal opportunity expert, if appropriate. B. Elements of domestic law submitted by the applicants 61. Before the ETA entered into force in 2004, discrimination based on ethnic origin had been prohibited by the Constitution, the Civil Code and the PEA. On the enactment of the ETA, the PEA was amended to provide that the requirement of equal treatment shall apply to all participants in public education and permeate all segments and procedures of the same. 62. Relevant provisions of the PEA are as follows: Section 4 “ (7) Those co-operating in the organisation, control and operation of public education and in the performance of the tasks of public education shall take account of the children ’ s interest, which is placed above everything else, when making decisions and taking measures. The children ’ s interests which are placed above everything else are the following in particular: ... b) that they should be given every kind of assistance to evolve their abilities and talents, to develop their personalities and to update their knowledge continually as prescribed by this Act; ... ” Section 10 “ (3) Children and pupils have the following rights: a) they shall receive education and teaching according to their abilities, interest and faculties, continue their studies according to their abilities and participate in primary art education in order that their talent should be recognised and developed; ... f) they shall receive particular care – special nurture or care with the purpose of rehabilitation – according to their conditions and personal endowments, they shall appeal to the institution of pedagogical assistance service, irrespective of their age; ... ” 63. The PEA further gives the definition of special educational needs (“SEN ”). Between 1 September 1996 and 1 September 2003, it provided as follows : Section 121 “ (18) (later 20): [ The term of ] other disability [concerns] those children/ pupils who, on the basis of the opinion of the expert and rehabilitation committee : a) struggle with pervasive development disorder (for example, autism), or b) struggle with disorders in school performance ... because of other psychic disorders ... as a consequence of which are lastingly impeded in development and learning (for example, dyslexia ... ); ... ” 64. By 1 September 2003 the PEA was amended; and the term SEN was introduced instead of ‘ other disability ’ : Section 121 “ ( 29 ) [C] hildren/ pupils with [SEN] are those who, on the basis of the opinion of the expert and rehabilitation committee : a) suffer from physical, sensory, mental, speech deficiency or autism, or multiple disabilities in case of the joint occurrence thereof, or b) are lastingly and substantially impeded in development and learning because of psychic disorders (for example, dyslexia ... ); ... ” 65. As of 1 September 2007, section 121 of the PEA reads as relevant : “(29) [C] hildren/ pupils with special educational needs are those who, on the basis of the opinion of the expert and rehabilitation committee : a) suffer from physical, sensory, mental, speech deficiency or autism, or multiple disabilities in case of the joint occurrence thereof, and struggle with lasting and serious disorders in the cognitive functions or behavioural development, attributable to organic causes, or b) struggle with long-term and serious disorders in the cognitive functions or behavioural development, not attributable to organic causes. ” 66. As demonstrated above, as of 1996, the PEA differentiated between two categories of disability, namely the category of mentally disabled children and the one of those who suffered from adaptive, learning or behavioural difficulties. As of 2003, the term SEN was introduced and the category of mentally disabled children was defined as SEN( a) whereas the one of those who suffered from adaptive, learning or behavioural difficulties was defined as SEN( b). In 2007, the law redefined these categories and since then has differentiated between the two categories according to the origin of special needs: organic disabilities correspond to SEN ( a) whereas special needs with non-organic causes correspond to SEN ( b). If the disability is attributable to organic causes, the child is declared by the rehabilitation committee of experts as having mild mental disability and will be educated in a specialised institution with specialised teachers. If the special needs do not originate in organic causes then the child can be educated in an integrated way, that is, in normal mainstream schools but with the support of special education teachers. Nevertheless, the PEA also allowed ‘ SEN(b) children ’ to be educated in special schools or classes, under a special curriculum; in order to change this practice, a subsequent amendment was introduced to the effect that only those mentally disabled children should be placed in segregated special schools whose disability derived from organic causes. However, in 2008, a new amendment reinstalled the previous provision of educating SEN children, again allowing children who were not mentally disabled and had no organic disability to be educated in segregated special schools. 67. As of 1 September 2007 the PEA introduced a provision for pupils suffering from adaptive, learning or behavioural difficulties, who can be educated in an integrated way: Section 30 “(7) If a child / pupil struggles with adaptive, learning or behavioural difficulties ... or the chronic and serious derangement of cognitive functions or of development of behaviour ascribable to organic reasons, he or she is entitled to developmental education. ... (8) The question whether a child/pupil struggles with adaptive, learning or behavioural difficulties or has special educational needs shall be decided by the rehabilitation committee of experts at the request of the educational counselling service. ” 68. As of 2003, the PEA also regulates the necessary conditions for educating children with special educational needs: Section 121 “( 28 ) The necessary conditions for the education and teaching of children with special educational needs are as follows : employment of conductive therapists and therapeutic teachers according to the separate kindergarten education or school education and teaching of children/pupils and the type and severity of the special educational need; application of a special curriculum, textbooks or any other special aids necessary for education and teaching; engagement of therapeutic teachers with qualifications in a special field necessary for private tuition, integrated kindergarten education, school education and teaching, developmental preparation and activities specified by the competent committee of experts; a special curriculum, textbooks and special therapeutic and technical tools necessary for the activities; provision of the professional services specified by the rehabilitation committee of experts for children students; ... ” 69. Under the PEA, the term “ special curriculum” means that ‘ SEN children ’ may be exempt from certain subjects fully or partially, according to the opinion of the expert and rehabilitation committee or the pedagogical advisory committee. 70. Lastly, the PEA also defines the different categories of secondary education and provides that, in order to educate children with special educational needs, secondary schools shall operate as special vocational school. Such schools shall educate those pupils who, as a result of their disabilities, cannot be educated in mainstream school. C. National Social Inclusion Strategy (Extreme Poverty, Child Poverty, the Roma) (2011–2020) 71. This document, published by the Ministry of Public Administration and Justice (State Secretariat for Social Inclusion) in December 2011, contains the following passages: “II.2. Providing an inclusive school environment, reinforcing the ability of education to compensate for social disadvantages The development of an inclusive school environment that supports integrated education and provides education that breaks the inheritance of segregation and disadvantages as well as the development of services assisting inclusion play a primary role in the reduction of the educational failures of disadvantaged children, including Roma children. As emphasised in the national strategy “ Making Things Better for Our Children” (2007), « in an educational system creating opportunities, children, regardless of whether they come from poor, under-educated families, live in segregated living conditions, are disabled, migrants or blessed with outstanding talent, must receive education suited to their abilities and talents throughout their lifetime, without their education being influenced or affected by prejudices, stereotypes, biased expectations or discrimination. Therefore, this must be the most important priority of Hungary ’ s educational policy. » In the interest of reducing the extent of educational exclusion, we must reduce the selectivity of the educational system. Institutions must have effective tools against discrimination and need major methodological support for promoting the integration of pupils encumbered with socio-cultural disadvantages; this is also the way to reduce the out-migration of non-Roma pupils from certain schools. The development and application of an inclusive school model is a fundamental criterion concerning the regulation, management and coordination of public education that is also key in methodological developments as well as in the renewal of teacher training and the determination of the content of cooperation between institutions. In the interest of ensuring that, likewise, children should not be unnecessarily declared disabled, we must provide for the enforcement of procedures determined in the relevant rule of law and professional criteria concerning the examinations serving as the basis for the subsequent expert opinion by providing professional assistance on an ongoing basis and with independent and effective inspections. In the spirit of prevention and in the interest of ensuring the timely and professional development of children, we must create standard procedures, professional contents and requirements also in the areas of early childhood development, educational consulting and speech therapy. The range of tests, examination methods and means used in the course of the testing and examination of children must be continuously extended. We must pay particular attention to avoiding declaring children disabled unnecessarily in the case of disadvantaged children transferred into long-term foster care and the Roma and must ensure that the tests, methods and procedures employed for the determination of the child ’ s actual abilities should be able to separate any deficiencies that may arise from environmental disadvantages.” III. RELEVANT INTERNATIONAL TEXTS A. Council of Europe sources 72. Recommendation no. R(2000)4 of the Committee of Ministers to member States on the education of Roma/Gypsy children in Europe (adopted by the Committee of Ministers on 3 February 2000 at the 696th meeting of the Ministers ’ Deputies) provides as follows: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Noting that the problems faced by Roma/Gypsies in the field of schooling are largely the result of long-standing educational policies of the past, which led either to assimilation or to segregation of Roma/Gypsy ... Bearing in mind that policies aimed at addressing the problems faced by Roma/Gypsies in the field of education should be comprehensive, based on an acknowledgement that the issue of schooling for Roma/Gypsy children is linked with a wide range of other factors and pre-conditions, namely the economic, social and cultural aspects, and the fight against racism and discrimination; Bearing in mind that educational policies in favour of Roma/Gypsy children should be backed up by an active adult education and vocational education policy; ... Recommends that in implementing their education policies the governments of the member States: – be guided by the principles set out in the appendix to this Recommendation; – bring this Recommendation to the attention of the relevant public bodies in their respective countries through the appropriate national channels.” The relevant sections of the Appendix to Recommendation No. R(2000)4 read as follows: “Guiding principles of an education policy for Roma/Gypsy children in Europe THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 READ IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 77. The applicants argued that their education in a remedial school represented ethnic discrimination in the enjoyment of their right to education, in breach of Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention. Article 2 of Protocol No. 1 provides: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 78. The Government contested that argument. A. Admissibility 1. The parties ’ submissions a. Victim status i. The Government 79. The Government argued that the applicants could no longer claim to be victims of a violation of their rights within the meaning of Article 34 of the Convention given that the Regional Court had found in respect of the Expert Panel that the applicants ’ right to equal treatment and education had been violated by the Expert Panel ’ s failure to individualise their diagnoses or to specify the cause and nature of their special educational needs. Each of the applicants had been awarded HUF 1,000,000 as non-pecuniary damages. Moreover, the Supreme Court had found that the County Council was liable for its failure to supervise the legality of the functioning of the Expert Panel which had conducted a gravely unlawful practice by failing to observe the legal guarantees concerning the parents ’ rights to be present, be informed, consent or seek a remedy. The prejudice suffered on account of the applicants ’ deprivation of the right to a remedy provided for by law and thereby of the theoretical chance of obtaining a more favourable assessment of their learning abilities had been compensated by non-pecuniary damages. ii. The applicants 80. The applicants contested the Government ’ s assertion that these judgments fully and effectively remedied the violation of their rights. The damages provided in regard to the omissions of the County Council and the Expert Panel did not respond to their claim of structural direct/indirect discrimination, i.e. the flawed system of diagnosis in Hungary, or to their claim of misdiagnosis and inadequate education. It was also established by the Regional Court that the damage caused derived from the convergence of the actions of each of the respondents. Because of the appellate process, it was only with regard to the Expert Panel that the judgment had become final. However, the applicants asserted that a final judgment in respect to an authority last in line of culpability, i.e. the Expert Panel, could not effectively remedy the violation of their rights to equal treatment in education. Given that respondents ’ actions had been inseparable, the Expert Panel alone could not have changed the structure under which the applicants had been misdiagnosed. Therefore, they continued to be victims of a violation of their rights under the Convention. b. Exhaustion of domestic remedies i. The Government 81. Concerning the applicants ’ claim that the assessment of their learning abilities had not been made with culturally unbiased tests which amounted to a general claim of a systemic error, the Government submitted that in this respect the applicants had failed to exhaust domestic remedies in accordance with Article 35 § 1 of the Convention. Such claims should have been raised by the applicants in proceedings instituted against the ministry responsible for education. The availability of this remedy was undisputable and there was record of successful such actions. Moreover, as to the issue of segregation, the Government submitted that this issue had not been raised before the competent domestic authorities; in particular, the question of the County Council ’ s liability for the eventual discriminatory effect of its education policy had been not addressed by the applicants in the domestic proceedings although the local authorities were better placed to determine the adequacy of an education policy to the needs of the children concerned. It was true that the applicants had initially filed an action against the County Council on account of its alleged failure to provide them with an education adequate to their abilities, however, they had withdrawn that action on 26 February 2007 and 9 March 2007, respectively. ii. The applicants 82. The applicants contested the Government ’ s position, claiming that they had submitted their claim before the domestic courts against respondents who were – each to a different extent as part of a system – all responsible for their misdiagnoses. They claimed that the ministry responsible for education oversaw the whole education sector, while at the local level it was the county councils which maintained, supervised and controlled the expert panels assessing children. In Hungary, certain State duties were transferred to local public authorities due to decentralisation of the public administration. c. Six-month time-limit i. The Government 83. The Government were of the opinion that the application was also inadmissible for the applicants ’ failure to observe the six-month time-limit laid down in Article 35 § 1 of the Convention. On the issue of whether the applicants ’ education was channelled into special education on the basis of assessments made with culturally biased or unbiased tests and methods, the Regional Court ’ s judgment of 27 May 2009 had been the final domestic decision. This judgment became final in regard to the Expert Panel on 2 July 2009. The applicants, however, had not submitted their application until 11 February 2011, that is, more than six months later. ii. The applicants 84. In order to find redress for the violation of their rights, the applicants stressed that they had needed to exhaust all effective domestic remedies available to them against all respondents who bore joint liability for the alleged breaches. Therefore the six- month time-limit ran from the receipt of the Supreme Court judgment on 11 August 2010. Indeed, the Government did not claim that the review by the Supreme Court had not been an effective remedy. 2. The Court ’ s assessment 85. The Court finds that the above objections are interrelated and must be examined together. In so far as the applicants ’ claim of discrimination and/or misdiagnosis is concerned, the Court observes that the Supreme Court did not sustain the applicants ’ claim of discrimination and breach of equal treatment. In particular, it confirmed the position of the lower courts regarding the respondents ’ joint liability, finding that, in the adjudication of the claims against the appealing parties, it was appropriate to evaluate the conduct of the School and the County Council in relation to the unlawful acts of the Expert Panel, as established by the Regional Court, even if the latter ’ s judgment had become final in the absence of appeal in regard to the Expert Panel. In view of this finding of joint liability, the Court will consider the alleged violations as deriving from the joint acts of the School, the County Council and the Expert Panel. However, the applicants obtained redress only in regard to the Expert Panel ’ s handling (see paragraphs 43 to 54 above), and none in regard to their claims of discrimination. In these circumstances, the Court is satisfied that the applicants have retained their victim status for the purposes of Article 34 of the Convention. 86. Moreover, the Court observes that the applicants pursued claims of discrimination and unequal treatment before all domestic judicial instances, including the Supreme Court, which however held in essence (see paragraph 53 above) that the applicants ’ claim of systemic error amounting to a violation of their Convention rights could not, in the circumstances, be redressed by means of the national law. The Court is therefore satisfied that – in respect of the alleged discrimination in the enjoyment of their right to education – the applicants have taken all the requisite steps to exhaust domestic remedies that can be reasonably expected in the circumstances. 87. Concerning the applicants ’ claim about the unsuitability of the test battery applied in their case, the Court notes that the applicants could have brought an action against the education authorities under this head. However, they did not do so. This aspect of the case cannot therefore be examined on the merits for non-exhaustion of domestic remedies (see also Horváth and Vadászi v. Hungary (dec.), no. 2351/06, 9 November 2010). 88. It follows from the above considerations that, to the extent that the applicants have exhausted domestic remedies, the six - month time-limit ran from the service of the Supreme Court ’ s judgment on 11 August 2010 and has thus been respected. 89. Furthermore, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible, apart from the applicants ’ claim about the unsuitability of the test battery applied in their cases (see paragraph 87 above), which must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4. B. Merits 1. The parties ’ arguments a. The applicants 90. According to the applicants, the improper shunting of Roma children into special schools constituted indirect discrimination, and was impermissible under Article 2 of Protocol No. 1. Under domestic law, indirect discrimination occurred where an apparently neutral provision, criterion or practice would put persons of a specific racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice was objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary. 91. The applicants submitted that Roma were uniquely burdened by the current system; no other protected group had been shown to have suffered wrongful placement in special schools based on the diagnostic system. Social deprivation was in great part linked to the concept of familial disability. This notion had been formulated during the first big wave of re-diagnosis of Roma children transferred to special schools in the 1970s. According to contemporary research, familial disability could not amount to any type or form of mental disability, as it was in essence based on the social deprivation and the non-mainstream, minority cultural background of Roma families and children. The definition of mental disability as comprising social deprivation and/or having a minority culture amounted to bias and prejudice. 92. In addition, the tests used for placement had been culturally biased and knowledge-based, putting Roma children at a particular disadvantage. None of the applicants had been observed in their home, and their ethnicity had not been taken into account when assessing the results. Consequently, their socio-cultural disadvantaged background resulting from their ethnicity had not been taken into consideration. 93. The applicants further faulted the examination process for its not being sufficiently individualised. After the first assessment, based on which the applicants had been transferred to a special school, the applicants had in fact not been re-examined. The “ review ” had been paper-based, their diagnoses had never been individualised, and their parents ’ rights had not been respected. These failures had been established by the domestic courts. Indeed, it had been a violation to assign them to special schools when their tests had indicated IQ scores higher than WTO standards for mental disability. For the applicants, the issue was why the Government had allowed expert panels across the country and in Nyíregyháza in particular to diagnose mild mental disability contrary to WHO standards. Given that the WHO standards had been applicable at the time, the development of science and the changing terminology could not serve as a reasonable justification for the misdiagnoses of the applicants and the deprivation of their right to access adequate education. Until 2007, special schools had not only educated mentally disabled children, but also educated children with special education needs, including educational challenge and poor socio-economic background. Due to an amendment in 2007, the PEA had prescribed that all children who had been sent to special schools because of “psychological disorders” or “learning difficulties” had to be re - tested in order to establish whether the disorder was the result of organic reasons; if not, those children had to be transferred back to normal schools. b. The Government 94. The Government denied that the applicants had been treated less favourably than non-Roma children in a comparable situation. Moreover, inasmuch as their treatment in education had been different from that of non-Roma (and other Roma) children of the same age, it had had an objective and reasonable justification. Moreover, they had not been treated differently from non-Roma children with similar socio-cultural disadvantages. 95. The Government were of the opinion that tests and standards tailored to the Roma population would have no sensible meaning from the point of view of assessing a child ’ s ability to cope with the mainstream education system – which was the purpose of the assessment of learning abilities of children and of the psychometric tests applied in the process. They referred to NERC ’ s expert opinion of 28 June 2007, which stated that the culture-bias of the “Budapest Binet Test ” was less apparent in younger ages ( three to six years of age) because it measured primarily basic practical knowledge. When this test was applied, its cultural bias could be compensated by a pedagogical examination aimed at exploring practical knowledge. Moreover, this one had not been the only test applied; and the applicants had been tested with a complex method. The diagnoses that the applicants needed special education had not been based on a single test; they had not even been exclusively based on the results of various tests obtained in a single examination session. 96. Moreover, the results of standardising the recently developed “ WISC-IV Child Intelligence Test ” showed that there were no ethnically determined differences between the test scores of Roma and non-Roma children. Therefore, in light of foreign experience gained in this field, it had been decided in the standardisation process not to lay down separate norms specifically applicable to Roma children but to use other means to ensure the fair assessment of all children in the course of the application of standardised tests. Relying on expert opinions, the Government claimed that socio-cultural background had been decisive for the mental development of the child, and when the actual level of a child ’ s mental development (IQ) had been measured, the result had necessarily been influenced by the same socio-cultural effects that had shaped the child ’ s mental development. In sum, the above results of the standardisation proved that IQ tests did not measure any difference between Roma and non-Roma culture or any cultural differences between Roma and non-Roma children. What they did measure was the effect of cultural deprivation or insufficient cultural stimuli in early childhood on the mental development of children, irrespective of their ethnic origin. Disproportionate representation of Roma children in special education was explained by their disproportionate representation in the group deprived of the beneficial effects of modernisation on the mental development of children. These factors concerned areas of social development which fell outside the scope of the right to education or any of the rights enshrined in the Convention. 97. The Government were further of the opinion that the testing (or assessment) of the applicants ’ abilities had been sufficiently individualised even if their diagnoses had not been so, as it had been established and redressed by the Regional Court ’ s final judgment against the Expert Panel. 98. Moreover, the Government agreed that the ensuing possibility of errors of assessment resulting from eventual personal biases or professional mistakes being committed must be counterbalanced by appropriate safeguards. Such procedural safeguards, including the parents ’ rights to be present, be informed, consent or seek remedy, were provided for by Hungarian law. The fact that these safeguards had not been respected in the applicants ’ case was not disputed: it had been established by the Supreme Court which had found that the Expert Panel had conducted a gravely unlawful practice in this respect and that the County Council had also been liable for this on account of its failure to supervise the legality of the functioning of the Expert Panel, as well as to put an end to the unlawful practice. 99. The assessment by the Expert Panel had not been carried out for medical purposes but with a view to determining whether the applicants could successfully be educated in a mainstream school. Therefore, contrary to the applicants ’ opinion, it could not be regarded as misdiagnosis if a diagnosis of learning disability, in terms of special education, did not coincide with a medical diagnosis of mild mental retardation as defined by the WHO. 100. Therefore, it had not been unreasonable for the Supreme Court to examine the applicants ’ diagnoses, contrary to the medical approach proposed by them, from the point of view of their right to an education adequate to their abilities and to find that, from this aspect, the Expert Panel ’ s original diagnoses establishing that the applicants had needed education under a special curriculum had been confirmed by the forensic experts ’ opinion, even in the second applicant ’ s case. 2. The Court ’ s assessment a. General principles 101. The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. However, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article. Discrimination on account of, inter alia, a person ’ s ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy ’ s vision of a society in which diversity is not perceived as a threat but as a source of enrichment. The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person ’ s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures (see D.H. and Others, cited above, §§ 175-176). 102. The Court has further established that, as a result of their turbulent history and constant uprooting, the Roma have become a specific type of disadvantaged and vulnerable minority. They therefore require special protection. Their vulnerable position means that special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases ( see Oršuš and Others, cited above, §§ 147-148). 103. Furthermore, the Court reiterates that the word “respect” in Article 2 of Protocol No. 1 means more than “acknowledge” or “take into account”; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State ( see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 37, Series A no. 48 ). Nevertheless, the requirements of the notion of “respect”, which appears also in Article 8 of the Convention, vary considerably from case to case, given the diversity of the practices followed and the situations obtaining in the Contracting States. As a result, the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see Lautsi and Others v. Italy [GC], no. 30814/06, § 61, ECHR–2011 (extracts); Leyla Şahin v. Turkey [GC], no. 44774/98, § 135, ECHR 2005 ‑ XI; Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 30-31, § 3, Series A no. 6). 104. In the context of the right to education of members of groups which suffered past discrimination in education with continuing effects, structural deficiencies call for the implementation of positive measures in order, inter alia, to assist the applicants with any difficulties they encountered in following the school curriculum. These obligations are particularly stringent where there is an actual history of direct discrimination. Therefore, some additional steps are needed in order to address these problems, such as active and structured involvement on the part of the relevant social services (see Oršuš and Others, cited above, § 177). The Court would note in this context Recommendation no. R(2000)4 of the Committee of Ministers (see paragraph 72 above) according to which appropriate support structures should be set up in order to enable Roma/Gypsy children to benefit, in particular through positive action, from equal opportunities at school. 105. Furthermore, the Court has already accepted in previous cases that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group. Such a situation may amount to “indirect discrimination”, which does not necessarily require a discriminatory intent (see, amongst other authorities, D.H. and Others, cited above, § 184). A general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who, as for instance in the present case, are identifiable on the basis of an ethnic criterion, may be considered discriminatory notwithstanding that it is not specifically aimed at that group, unless that measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate (see Oršuš and Others, cited above, § 150 ). Furthermore, discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 ‑ VIII ). 106. Where it has been shown that legislation produces such indirect discriminatory effect, the Court would add that, as with cases concerning employment or the provision of services (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 157, ECHR 2005 ‑ VII), it is not necessary, in cases in the educational sphere, to prove any discriminatory intent on the part of the relevant authorities (see D.H. and Others, cited above, § 194). 107. When it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce. This does not, however, mean that indirect discrimination cannot be proved without statistical evidence (see D.H. and Others, cited above, § 188). 108. Where an applicant alleging indirect discrimination establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden of proof shifts to the respondent State. The latter must show that the difference in treatment is not discriminatory (see, mutatis mutandis, Nachova and Others, loc. cit.). Regard being had in particular to the specificity of the facts and the nature of the allegations made in this type of case (see, mutatis mutandis, Nachova and Others, cited above, § 147), it would be extremely difficult in practice for applicants to prove indirect discrimination without such a shift in the burden of proof. b. Application of those principles to the present case 109. The Court notes that the applicants in the present case made complaints under Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention, claiming that the fact that they had been assigned to a remedial school for children with special educational needs during their primary education violated their right to receive an education and their right to be free from discrimination. In their submission, all that has to be established is that, without objective and reasonable justification, they were assigned to a school where, because of the limited curriculum, they were treated less favourably than non-Roma children in a comparable situation and that this amounted in their case to indirect discrimination (compare with the above-mentioned D.H. and Others judgment, § 183 ). 110. The Court notes that Roma children have been overrepresented among the pupils at the Göllesz Viktor Remedial Primary and Vocational School (see paragraph 7 above) and that Roma appear to have been overrepresented in the past in remedial schools due to the systematic misdiagnosis of mental disability (see paragraph 10 above). The underlying figures not having been disputed by the Government – who have not produced any alternative statistical evidence – the Court considers that these figures reveal a dominant trend. It must thus be observed that a general policy or measure exerted a disproportionately prejudicial effect on the Roma, a particularly vulnerable group. For the Court, this disproportionate effect is noticeable even if the policy or the testing in question may have similar effect on other socially disadvantaged groups as well. The Court cannot accept the applicants ’ argument that the different treatment as such resulted from a de facto situation that affected only the Roma. However, it is uncontested – and the Court sees no reason to hold otherwise – that the different, and potentially disadvantageous, treatment applied much more often in the case of Roma than for others. The Government could not offer a reasonable justification of such disparity, except that they referred, in general terms, to the high occurrence of disadvantageous social background among the Roma ( see paragraph 96 above ). 111. Although the policy and the testing in question have not been argued to aim specifically at that group, for the Court there is consequently a prima facie case of indirect discrimination. It thus falls on the Government to prove that in the case of applicants the difference in treatment had no disproportionately prejudicial effects due to a general policy or measure that is couched in neutral terms, and that therefore the difference in treatment was not discriminatory. 112. The Court reiterates that a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see, among many other authorities, Oršuš and Others, cited above, § 196; Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I; Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006 ‑ VI ). The Court stresses that where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible. 113. The Court notes the Government ’ s submissions (see paragraph 94 above) according to which the impugned treatment is neutral ( that is, based on objective criteria) and results in the different treatment of different people, and moreover the education programme in its existing form is beneficial to pupils with different abilities. The Court accepts that the Government ’ s position to retain the system of special schools/classes has been motivated by the desire to find a solution for children with special educational needs. However, it shares the disquiet of the other Council of Europe institutions who have expressed concerns about the more basic curriculum followed in these schools and, in particular, the segregation which the system causes (see paragraphs 73 to 75 above) – even if in the present case the applicants were not placed in ethnically segregated classes. 114. The Court notes that the Hungarian authorities took a number of measures to avoid misdiagnoses in the placement of children. Nevertheless, the Council of Europe Commissioner for Human Rights found in 2006 that 20% of Roma children continued to be assigned to special classes, as compared with only 2% of majority children (see paragraph 74 above). Moreover, the ECRI Report published in 2009 ( see paragraph 75 above ) indicated a high number of misplaced Roma pupils. For the Court, these facts raise serious concerns about the adequacy of these measures at the material time. 115. The Court notes that the misplacement of Roma children in special schools has a long history across Europe. Regarding the Czech Republic, the Advisory Committee on the Framework Convention for the Protection of National Minorities pointed out that children who were not mentally handicapped were frequently and quasi-automatically placed in Czech remedial schools “[owing] to real or perceived language and cultural differences between Roma and the majority” (see D.H. and Others, cited above, § 68). In Hungary, the concept of “familial disability” ( see paragraphs 10 and 91 above ) resulted in comparable practices. The ECRI Report published in 2009 notes that the vast majority of children with mild learning disabilities could easily be integrated into mainstream schools; and many are misdiagnosed because of socio-economic disadvantage or cultural differences. These children are unlikely to break out of this system of inferior education, resulting in their lower educational achievement and poorer prospects of employment. The Report also noted that efforts to combat the high proportion of Roma children in special schools – both by assisting wrongly diagnosed children and preventing misdiagnosis in the first place – have not yet had a major impact (see paragraph 75 above). 116. In such circumstances – and in light of the recognised bias in past placement procedures ( see paragraph 115 above) – the Court considers that the State has specific positive obligations to avoid the perpetuation of past discrimination or discriminative practices disguised in allegedly neutral tests. 117. While in the present case the Court is not called on to examine the alleged structural problems of biased testing, the related complaint being inadmissible ( see paragraph 87 above), it is nevertheless incumbent on the State to demonstrate that the tests and their application were capable of determining fairly and objectively the school aptitude and mental capacity of the applicants. 118. The Court observes that the Hungarian authorities set the borderline value of mental disability at IQ 86, significantly higher than the WHO guideline of IQ 70 (see paragraph 18 above). The Expert Panel found disparate measurements of Mr Horváth ’ s IQ between IQ 61 and 83. Mr Kiss had an IQ of 63 according to the “ Budapest Binet Test” and an IQ of 83 according to the “Raven Test ”. However, when taking the latter test at a summer camp (see paragraph 31 above), Mr Horváth scored IQ 83 and Mr Kiss IQ 90. The Court cannot take a position as to the acceptability of IQ scores as the sole indicators of school aptitude but finds it troubling that the national authorities significantly departed from the WHO standards. 119. The Court observes, further, that the tests used to assess the applicants ’ learning abilities or difficulties have given rise to controversy and continue to be the subject of scientific debate and research. The Court is aware that it is not its role to judge the validity of such tests, or to identify the state-of-the- art, least culturally biased test of educational aptitude. It is only called on to ascertain whether good faith efforts were made to achieve non-discriminatory testing. Nevertheless, various factors in the instant case lead the Court to conclude that the results of the tests carried out in regard to applicants did not provide the necessary safeguards against misdiagnosis that would follow from the positive obligations incumbent on the State in a situation where there is a history of discrimination against ethnic minority children. 120. In the first place, the Court notes that it was common ground between the parties that all the children who were examined sat the same tests, irrespective of their ethnic origin. The Government acknowledged that at least part of the test battery applied ( namely, the “ Budapest Binet Test ” ) was culturally biased (see paragraph 95 above). Moreover, certain tests used in the case of the applicants were found to be obsolete by independent experts (see paragraph 34 above). 121. In these circumstances, the Court considers that, at the very least, there is a danger that the tests were culturally biased. For the Court, the issue is therefore to ascertain to what extent special safeguards were applied that would have allowed the authorities to take into consideration, in the placement and regular biannual review process, the particularities and special characteristics of the Roma applicants who sat them, in view of the high risk of discriminatory misdiagnosis and misplacement. 122. The Court relies in this regard on the facts established by the Regional Court which were not contradicted on appeal (see paragraphs 39 to 42 above). This court found that the Expert Panel had failed to individualise the applicants ’ diagnoses or to specify the cause and nature of their special educational needs and therefore violated the applicants ’ rights to equal opportunity. Moreover, the social services administering the placement had been subject to constant reorganisation. In this regard, the court had found that the conditions necessary for the functioning of the Expert Panel had not been provided. Consequently, the Expert Panel and the County Council could not provide the necessary guarantees against misplacement which was historically more likely to affect Roma. Moreover, after a careful analysis of the applicable law, the Court of Appeal and the Supreme Court concluded that, as of 2003, children with special educational needs had included students with psychological developmental troubles (learning disabilities). It was not clear whether the applicants had mental (or learning ) disabilities that could not have been taken into consideration within the normal education system by providing additional opportunities to catch up with the normal curriculum. Those courts found that, because of the changes in legislation, related to changing concepts on integrated education, there was lack of legal certainty from 1 January until 1 September 2007 (see paragraph 45 in fine above) 123. In the face of these findings, it is difficult for the Court to conceive that there was adequate protection in place safeguarding the applicants ’ proper placement. Therefore, the tests in question, irrespective of their allegedly biased nature, cannot be considered to serve as sufficient justification for the impugned treatment. 124. As regards the question of parental consent, the Court accepts the Government ’ s submission that in this regard the violation of the applicants ’ rights to education was recognised and adequate remedies were provided in the domestic procedure (see paragraph 79 above). However, in the case of Mr Kiss, the absence of parental participation and the parents ’ express objection to the placement can be seen as having contributed to the discrimination. 125. The Court notes that the identification of the appropriate educational programme for the mentally disabled and students with a learning disability, especially in the case of Roma children, as well as the choice between a single school for everyone, highly specialised structures and unified structures with specialised sections is not an easy one. It entails a difficult balancing exercise between the competing interests. The Court notes in the Hungarian context that the 2003 programme (see paragraph 12 above) and the 2011 National Inclusion Strategy (see paragraph 71 above) advocate an integrated approach in this respect. As to the setting and planning of the curriculum, this mainly involves questions of expediency on which it is not for the Court to rule (see Valsamis v. Greece, 18 December 1996, § 28, Reports of Judgments and Decisions 1996-VI). 126. Nevertheless, whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation (see Buckley v. the United Kingdom, 25 September 1996, § 76, Reports 1996– IV, and Connors v. the United Kingdom, no. 66746/01, § 83, 27 May 2004). 127. The facts of the instant case indicate that the schooling arrangements for Roma applicants with allegedly mild mental disability or learning disability were not attended by adequate safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State took into account their special needs as members of a disadvantaged class (see, mutatis mutandis, Buckley, cited above, § 76, and Connors, cited above, § 84). Furthermore, as a result of the arrangements, the applicants were placed in schools for children with mental disabilities where a more basic curriculum was followed than in ordinary schools and where they were isolated from pupils from the wider population. As a consequence, they received an education which did not offer the necessary guarantees stemming from the positive obligations of the State to undo a history of racial segregation in special schools. The education provided might have compounded their difficulties and compromised their subsequent personal development instead of helping them to integrate into the ordinary schools and develop the skills that would facilitate life among the majority population. In that connection, the Court notes with interest that the new legislation intends to move out students with learning disabilities from special schools and provides for children with special educational needs, including socially disadvantaged children, to be educated in ordinary schools enabling the diminution of the statistical overrepresentation of Roma in the special school population. This integration process requires the use of state - of - the - art testing. However, in the present case the Court is not called on to examine the adequacy of education testing as such in Hungary. 128. Since it has been established that the relevant legislation, as applied in practice at the material time, had a disproportionately prejudicial effect on the Roma community, and that the State, in a situation of prima facie discrimination, failed to prove that it has provided the guarantees needed to avoid the misdiagnosis and misplacement of the Roma applicants, the Court considers that the applicants necessarily suffered from the discriminatory treatment. In this connection – and with regard to the vulnerability of persons with mental disabilities as such, as well as their past history of discrimination and prejudice – the Court also recalls its considerations pronounced in the case of Alajos Kiss v. Hungary (no. 38832/06, 20 May 2010): “[I] f a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State ’ s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question ... .[T]he treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny.” (paragraphs 42 and 44). 129. Consequently, there has been a violation in the instant case of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1 in respect of each of the applicants. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 130. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 131. The applicants made no damages claims. B. Costs and expenses 132. The applicants claimed, jointly, 6,000 euros (EUR) for the costs and expenses incurred before the Court. This claim corresponds to 100 hours of legal work billable by their lawyer at an hourly rate of EUR 60. 133. The Government contested this claim. 134. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,5 00 jointly to the applicants, who were represented by a lawyer and a non-governmental organisation, covering costs under all heads. C. Default interest 135. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 2 (right to education) of Protocol No. 1. It underlined in particular that there was a long history of misplacement of Roma children in special schools in Hungary. The Court found that the applicants’ schooling arrangement indicated that the authorities had failed to take into account their special needs as members of a disadvantaged group. As a result, the applicants had been isolated and had received an education which made their integration into majority society difficult. |
388 | Risk of being sentenced to death | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW ON ARTICLE 3 AND EXTRADITION A. Extradition arrangements between the United Kingdom and the United States 33. For each applicant, the applicable bilateral treaty on extradition was the 1972 UK – USA Extradition Treaty (now superseded by a 2003 treaty). Article IV of the 1972 treaty provided that extradition could be refused unless the requesting Party gave assurances satisfactory to the requested Party that the death penalty would not be carried out. B. Relevant United Kingdom law on Article 3 and extradition: R (Wellington) v. Secretary of State for the Home Department [2008] UKHL 72 34. The United States requested the extradition of Ralston Wellington from the United Kingdom to stand trial in Missouri on two counts of murder in the first degree. In his appeal against extradition, Mr Wellington argued that his surrender would violate Article 3 of the Convention, on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole. 35. In giving judgment in the High Court ([2007] EWHC 1109(Admin)), Lord Justice Laws found that there were “powerful arguments of penal philosophy” which suggested that risk of a whole-life sentence without parole intrinsically violated Article 3 of the Convention. He observed: “The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self-defence or just war; but retributive punishment is never enough to justify it. Yet a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence the whole-life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis ) is a poor guarantee of proportionate punishment, for the whole-life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live. It is therefore liable to be disproportionate – the very vice which is condemned on Article 3 grounds – unless, of course, the death penalty’s logic applies: the crime is so heinous it can never be atoned for. But in that case the supposed inalienable value of the prisoner’s life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip-service to the value of life; not to vouchsafe it.” However, and “not without misgivings”, he considered that the relevant authorities, including those of this Court, suggested an irreducible life sentence would not always raise an Article 3 issue. 36. Wellington’s appeal from that judgment was heard by the House of Lords and dismissed on 10 December 2008. Central to the appeal was paragraph 89 of this Court’s judgment in Soering v. the United Kingdom, 7 July 1989, § 89, Series A no. 161, where the Court stated that considerations in favour of extradition: “.. must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.” 37. A majority of their Lordships, Lord Hoffmann, Baroness Hale and Lord Carswell, found that, on the basis of this paragraph, in the extradition context, a distinction had to be drawn between torture and lesser forms of ill-treatment. When there was a real risk of torture, the prohibition on extradition was absolute and left no room for a balancing exercise. However, insofar as Article 3 applied to inhuman and degrading treatment and not to torture, it was applicable only in a relativist form to extradition cases. 38. Lord Hoffmann, giving the lead speech, considered the Court’s judgment in the case of Chahal v. the United Kingdom, 15 November 1996, § 81, Reports of Judgments and Decisions 1996 ‑ V, in which the Court stated that: “It should not be inferred from the Court’s remarks [at paragraph 89 of Soering ] that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 (art. 3) is engaged.” Lord Hoffmann stated: “In the context of Chahal, I read this remark as affirming that there can be no room for a balancing of risk against reasons for expulsion when it comes to subjecting someone to the risk of torture. I do not however think that the Court was intending to depart from the relativist approach to what counted as inhuman and degrading treatment which was laid down in Soering and which is paralleled in the cases on other articles of the Convention in a foreign context. If such a radical departure from precedent had been intended, I am sure that the Court would have said so.” For Lord Hoffmann, paragraph 89 of Soering made clear that: “...the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the ‘minimum level of severity’ which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account.” He went on to state: “A relativist approach to the scope of article 3 seems to me essential if extradition is to continue to function. For example, the Court of Session has decided in Napier v Scottish Ministers (2005) SC 229 that in Scotland the practice of ‘slopping out’ (requiring a prisoner to use a chamber pot in his cell and empty it in the morning) may cause an infringement of article 3. Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion. If, however, it were applied in the context of extradition, it would prevent anyone being extradited to many countries, poorer than Scotland, where people who are not in prison often have to make do without flush lavatories.” 39. A minority of their Lordships, Lord Scott and Lord Brown, disagreed with these conclusions. They considered that the extradition context was irrelevant to the determination of whether a whole life sentence amounted to inhuman and degrading treatment. They found no basis in the text of Article 3 for such a distinction. Lord Brown also considered that the Court, in Chahal and again in Saadi v. Italy [GC], no. 37201/06, ECHR 2008 ‑ ..., had departed from the previous, relativist approach to inhuman and degrading treatment that it had taken in Soering. He stated: “There is, I conclude, no room in the Strasbourg jurisprudence for a concept such as the risk of a flagrant violation of article 3’s absolute prohibition against inhuman or degrading treatment or punishment (akin to that of the risk of a ‘flagrant denial of justice’). By the same token that no one can be expelled if he would then face the risk of torture, so too no one can be expelled if he would then face the risk of treatment or punishment which is properly to be characterised as inhuman or degrading. That, of course, is not to say that, assuming for example ‘slopping out’ is degrading treatment in Scotland, so too it must necessarily be regarded in all countries (see para 27 of Lord Hoffmann’s opinion)... the Strasbourg Court has repeatedly said that the Convention does not ‘purport to be a means of requiring the contracting states to impose Convention standards on other states’ ( Soering, para 86) and article 3 does not bar removal to non-Convention states (whether by way of extradition or simply for the purposes of immigration control) merely because they choose to impose higher levels or harsher measures of criminal punishment. Nor is it to say that a risk of article 3 ill-treatment, the necessary pre-condition of an article 3 bar upon extradition, will readily be established. On the contrary, as the Grand Chamber reaffirmed in Saadi at para 142: ‘[T]he Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment. .. in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof. .. before. .. finding that the enforcement of removal from the territory would be contrary to article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion.’” Therefore, for Lord Brown, if a mandatory life sentence violated Article 3 in a domestic case, the risk of such a sentence would preclude extradition to another country. 40. However, despite these different views, none of the Law Lords found that the sentence likely to be imposed on Mr Wellington would be irreducible; having regard to the commutation powers of the Governor of Missouri, it would be just as reducible as the sentence at issue in Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008 ‑ .... All five Law Lords also noted that, in Kafkaris, the Court had only said that the imposition of an irreducible life sentence may raise an issue under Article 3. They found that the imposition of a whole life sentence would not constitute inhuman and degrading treatment in violation of Article 3 per se, unless it were grossly or clearly disproportionate. Lord Brown in particular noted: “Having puzzled long over this question, I have finally concluded that the majority of the Grand Chamber [in Kafkaris ] would not regard even an irreducible life sentence—by which, as explained, I understand the majority to mean a mandatory life sentence to be served in full without there ever being proper consideration of the individual circumstances of the defendant’s case—as violating article 3 unless and until the time comes when further imprisonment would no longer be justified on any ground—whether for reasons of punishment, deterrence or public protection. It is for that reason that the majority say only that article 3 may be engaged.” Lord Brown added that this test had not been met in Wellington’s case, particularly when the facts of the murders for which he was accused, if committed in the United Kingdom, could have justified a whole life order. However, Lord Brown considered that, in a more compelling case, such as the mercy killing of a terminally ill relative, this Court “might well judge the risk of ill-treatment to be sufficiently real, clear and imminent to conclude that extradition must indeed be barred on article 3 grounds”. 41. Finally, Lord Hoffmann, Lord Scott, Baroness Hale and Lord Brown all doubted Lord Justice Laws’ view that life imprisonment without parole was lex talionis. Lord Hoffmann, Baroness Hale and Lord Brown did not accept his premise that the abolition of the death penalty had been founded on the idea that the life of every person had an inalienable value; there were other, more pragmatic reasons for abolition such as its irreversibility and lack of deterrent effect. Lord Scott rejected the view that an irreducible life sentence was inhuman and degrading because it denied a prisoner the possibility of atonement; once it was accepted that a whole life sentence could be a just punishment, atonement was achieved by the prisoner serving his sentence. 42. Wellington’s application to this Court was struck out on 5 October 2010, the applicant having indicated his wish to withdraw it ( Wellington v. the United Kingdom (dec.), no. 60682/08). C. Relevant Canadian case-law on extradition and the Canadian Charter of Rights 43. Section 1 of the Canadian Charter of Rights provides that the Charter guarantees the rights and freedoms set out in it “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Section 7 provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 12 provides: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” 44. In United States v. Burns [2001] S.C.R. 283, Burns and another (the respondents) were to be extradited from Canada to the State of Washington to stand trial for murders allegedly committed when they were both eighteen. Before making the extradition order the Canadian Minister of Justice had not sought assurances that the death penalty would not be imposed. The Supreme Court of Canada found that the remoteness between the extradition and the potential imposition of capital punishment meant the case was not appropriately considered under section 12 but under section 7. However, the values underlying section 12 could form part of the balancing process engaged under section 7. The extradition of the respondents would, if implemented, deprive them of their rights of liberty and security of person as guaranteed by section 7. The issue was whether such a deprivation was in accordance with the principles of fundamental justice. While extradition could only be refused if it “shocked the conscience” an extradition that violated the principles of fundamental justice would always do so. The court balanced the factors that favoured extradition against those that favoured seeking assurances that the death penalty would not be sought. The latter included the fact that a degree of leniency for youth was an accepted value in the administration of justice, even for young offenders over the age of eighteen. The court concluded that the objectives sought to be advanced by extradition without assurances would be as well served by extradition with assurances. The court held therefore that assurances were constitutionally required by section 7 in all but exceptional cases. 45. In United States of America v. Ferras; United States of America v. Latty, [2006] 2 SCR 77, the appellants were to be extradited to the United States to face charges of fraud (the Ferras case) or trafficking of cocaine (the Latty case). The appellants in the Latty case had argued that, if extradited and convicted they could receive sentences of ten years to life without parole and this would “shock the conscience”. In dismissing the appeals, the Supreme Court affirmed the balancing approach laid down in Burns to determining whether potential sentences in a requesting state would “shock the conscience”. The harsher sentences the appellants might receive if convicted in the United States were among the factors militating against their surrender but they had offered no evidence or case-law to back up their assertions that the possible sentences would shock the conscience of Canadians. The factors favouring extradition far outweighed those that did not. D. Relevant international law on non-refoulement 1. The International Covenant on Civil and Political Rights 46. Article 7 of the ICCPR where relevant provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The Human Rights Committee’s most recent general comment on Article 7 (No. 20, of 10 March 1992) states the Committee’s view that: “States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.” (see also Chitat Ng v. Canada, CCPR/C/49/D/469/1991, 7 January 1994; A.J.R. v. Australia, CCPR/C/60/D/692/1996, 11 August 1997). 2. The United Nations Convention Against Torture 47. Article 3 § 1 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”) provides: “No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” 48. Article 16 § 2 provides: “The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.” 3. The Council of Europe Guidelines on Human Rights and the fight against terrorism 49. The above guidelines (adopted by the Committee of Ministers on 11 July 2002) contain the following provisions on refoulement and extradition: “ XII. Asylum, return (‘refoulement’) and expulsion ... 2. It is the duty of a State that has received a request for asylum to ensure that the possible return (“refoulement”) of the applicant to his/her country of origin or to another country will not expose him/her to the death penalty, to torture or to inhuman or degrading treatment or punishment. The same applies to expulsion. III. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE ON LIFE SENTENCES A. The applicants’ possible sentences and gubernatorial pardons in Florida and Maryland 1. The law and practice of the State of Florida a. Information provided by the United States authorities 51. In a letter dated 4 June 2007, the United States Department of Justice set out the law and practice of Florida as it applied to the first applicant. He was facing a first-degree murder charge which could be proved by establishing (i) a premeditated design to effect the death of the person killed; or (ii) that he committed, or was attempting to commit, a serious felony offence, including armed robbery, at the time the person was killed. The punishment upon conviction was the same: life imprisonment. 52. Article 4, section 8(a) of the Florida Constitution (replicated in Florida Statute section 940.01(1) gave the Governor, with the approval of two members of his cabinet (“the Board of Executive Clemency”), the power to grant pardons and commute punishments. There was no legal limitation on what the Governor could consider in granting pardon or commuting a sentence. However, in every case he would consider inter alia the nature of the offence and any history of mental instability, drug abuse, or alcohol abuse. The letter confirmed that, from 1980-2006, the Governor had commuted 133 sentences, of which forty-four were for first-degree murder. If a request was denied, another request could be made in five years or, alternatively, the defendant could apply for waiver of the five-year period. A defendant could also apply for commutation if he or she became ill and could file a motion to have his sentence set aside on the ground that it amounted to cruel and unusual punishment. The letter accepted that, given the current status of the law, such a motion was unlikely to succeed. b. Information provided by the first applicant 53. The first applicant provided the following provisions of Florida law on sentencing: “775.082(1) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole. 921.141(1) Separate proceedings on issue of penalty. — Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by s. 775.082. 54. He also provided an affidavit sworn by a Florida criminal defence attorney (and former Assistant State Attorney), Mr Oliver D. Barksdale. Mr Barksdale disagreed with the view of the current Assistant State Attorney Mr Borello that, if the prosecution did not present evidence in support of the death penalty, there was no basis upon which the trial court could find there were sufficient aggravating circumstances to warrant the death penalty (see Mr Borello’s statement summarised paragraph 12 above). In Mr Barksdale’s view, in the penalty phase of a trial there was no requirement that new evidence be present; the jury could be asked simply to rely on the evidence heard during the guilt phase of proceedings. There was no reason why a trial court could not convene a penalty phase and impose the death sentence, even if the prosecution did not seek it. The trial judge was not limited by any recommendation of the prosecution. 55. The first applicant also submitted an affidavit sworn by Professor Sandra Babcock, of Northwestern University School of Law. Her view was that the assurances provided by the United States Government and the Florida authorities made it unlikely that the first applicant faced a significant risk of being sentenced to death but some risk remained as the assurances were not binding in Florida law. It was more likely that he would face a mandatory sentence of life imprisonment without the possibility of parole and executive clemency was the only avenue by which he could seek reduction in his sentence. The procedure for seeking such a reduction was subject to minimal procedural protections. Florida had never granted clemency to a defendant sentenced to life imprisonment without parole and rarely commuted sentences of those accused of first degree murder; after 1994, no one convicted of first degree murder had been granted a commutation. Although the granting of clemency required the approval of two cabinet members, it could be denied unilaterally by the Governor at any time. The Governor and cabinet were elected officials and would never risk political unpopularity by granting a commutation unless there were clear evidence of innocence. The first applicant’s chances of receiving clemency were remote and it was virtually certain that he would spend the rest of his life in prison. 2. The law and practice of the State of Maryland 56. Further to the second affidavit of Mr Michael set out at paragraph 30 above, section 2-304 of the Maryland Criminal Code provides that where the State has given notice of its intention to seek a sentence of life imprisonment without the possibility of parole, the court shall conduct a sentencing hearing as soon as practicable after the defendant is found guilty of murder in the first degree to determine whether he shall be sentenced to imprisonment for life without the possibility of parole or to imprisonment for life. By section 2-101(b), a sentence of imprisonment for life without the possibility of parole means “imprisonment for the natural life of an inmate under the custody of a correctional facility”. A person who receives such a sentence is not eligible for parole consideration and may not be granted parole at any time during the term of sentence (Maryland Code of Correctional Services Article 7-301(d)(3)(i)). The courts of Maryland have no role in determining whether such prisoners should be released on parole; that power is vested in the Governor of the State (Article 7-301(d)(3)(ii) and 7-601). He may pardon any individual convicted of a crime subject to any conditions he requires or remit any part of a sentence of imprisonment without the remission operating as a full pardon. An inmate who has been sentenced to life imprisonment (as opposed to a sentence of life imprisonment without the possibility of parole) is not eligible to be considered for parole until he has served fifteen years’ imprisonment. If eligible, he may only be paroled with the approval of the Governor (7-301(1) and (4)). 57. On 29 May 2008, the United States Department of Justice, having contacted the prosecutor in Maryland, provided the following information to the United Kingdom Government: “The prosecutor intends to seek a trial on all counts of the indictment pending against Mr Edwards if he is surrendered on all counts. Mr Edwards is convicted of two or more offenses, the prosecutor would, in all likelihood, ask the court to impose – and the court would, in all likelihood, impose – consecutive sentences. If Mr Edwards is convicted of an offense, it is unlikely that the court would place much significance on his age. It is likely, however, that the court would place some significance on the fact that, given his age, he has a relatively minor criminal record. ... If the court were to sentence Mr Edwards to life imprisonment without parole, the Governor of Maryland could commute the sentence or grant Mr Edwards a full pardon.” 58. In a letter of 2 September 2008 to the second applicant’s representatives, the Department of Public Safety and Correctional Services of Maryland provided the following information on the sentence of life imprisonment without the possibility of parole. The sentence is available for a number of non-homicide offences, including rape, child sex offences, kidnapping and, since 1975, for a fourth conviction of a crime of violence (“the repeat offender provision”). It has been available for homicide since 1987. Approximately 367 offenders from 1977 onwards have been sentenced to life imprisonment without the possibility of parole. A review of records dating back to 1985 indicated that there had been no releases into the community by a Governor’s commutation of a sentence of life imprisonment without the possibility of parole. In 1995, there was one commutation of the sentence to one of life imprisonment. The second applicant maintains that, in that particular case, the person had been sentenced to life imprisonment without the possibility of parole under the repeat offender provision. He had applied unsuccessfully for parole after 30 years’ imprisonment. B. Eighth Amendment case-law on “grossly disproportionate” sentences 59. The Eighth Amendment to the Constitution provides, inter alia, that cruel and unusual punishments shall not be inflicted. It has been interpreted by the Supreme Court of the United States as prohibiting extreme sentences that are grossly disproportionate to the crime ( Graham v. Florida 130 S. Ct. 2011, 2021 (2010)). There are two categories of cases addressing proportionality of sentences. The first category is a case-by-case approach, where the court considers all the circumstances of the case to determine whether the sentence is excessive. This begins with a “threshold comparison” of the gravity of the offence and the harshness of the penalty. If this leads to an inference of gross disproportionality, the court compares the sentence in question with sentences for the same crime in the same jurisdiction and other jurisdictions. If that analysis confirms the initial inference of gross disproportionality, a violation of the Eighth Amendment is established. In the second category of cases, the Supreme Court has invoked proportionality to adopt “categorical rules” prohibiting a particular punishment from being applied to certain crimes or certain classes of offenders. 60. Under the first category, the Supreme Court has struck down as grossly disproportionate a sentence of life imprisonment without parole imposed on a defendant with previous convictions for passing a worthless cheque ( Solem v. Helm 463 US 277 (1983)). It has upheld the following sentences: life with the possibility of parole for obtaining money by false pretences ( Rummel v. Estelle 445 US 263 (1980)); life imprisonment without parole for possessing a large quantity of cocaine ( Harmelin v. Michigan 501 US 957 (1991)); twenty-five years to life for theft under a “three strikes” recidivist sentencing law ( Ewing v. California 538 US 11 (2003)); forty years’ imprisonment for distributing marijuana ( Hutto v. Davis 454 US 370 (1982)). 61. Examples of cases considered under the second category include Coker v. Georgia 433 US 584 (1977) (prohibiting capital punishment for rape) and Roper v. Simmons 543 US 551 (2005) (prohibiting capital punishment for juveniles under eighteen). In Graham, cited above, the court held that the Eighth Amendment also prohibited the imposition of life imprisonment without parole on a juvenile offender who did not commit homicide. The court found that life imprisonment without parole was an especially harsh punishment for a juvenile and that the remote possibility of pardon or other executive clemency did not mitigate the harshness of the sentence. Although a State was not required to guarantee eventual freedom to a juvenile offender convicted of a non-homicide crime, it had to provide some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. The court also held that a sentence lacking in legitimate penological justification (such as retribution, deterrence, incapacitation and rehabilitation) was, by its nature, disproportionate. Such purposes could justify life without parole in other contexts, but not life without parole for juvenile non-homicide offenders. C. Relevant international and comparative law on life sentences and “grossly disproportionate” sentences 62. The relevant texts of the Council of Europe, the European Union and other international legal texts on the imposition and review of sentences of life imprisonment, including the obligations of Council of Europe member States when extraditing individuals to States where they may face such sentences, are set out in Kafkaris, cited above, at §§ 68-76. Additional materials before the Court in the present cases (and those materials in Kafkaris that are expressly relied on by the parties) may be summarised as follows. 1. Council of Europe texts 63. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) prepared a report on “Actual/Real Life Sentences” dated 27 June 2007 (CPT (2007) 55). The report reviewed various Council of Europe texts on life sentences, including recommendations (2003) 22 and 23, and stated in terms that: (a) the principle of making conditional release available is relevant to all prisoners, “even to life prisoners”; and (b) that all Council of Europe member States had provision for compassionate release but that this “special form of release” was distinct from conditional release. It noted the view that discretionary release from imprisonment, as with its imposition, was a matter for the courts and not the executive, a view which had led to proposed changes in the procedures for reviewing life imprisonment in Denmark, Finland and Sweden. The report also quoted with approval the CPT’s report on its 2007 visit to Hungary in which it stated: “[A]s regards “actual lifers”, the CPT has serious reservations about the very concept according to which such prisoners, once they are sentenced, are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release”. The report’s conclusion included recommendations that: no category of prisoners should be “stamped” as likely to spend their natural life in prison; no denial of release should ever be final; and not even recalled prisoners should be deprived of hope of release. 2. The International Criminal Court 64. Article 77 of the Rome Statute of the International Criminal Court allows for the imposition of a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. Such a sentence must be reviewed after twenty-five years to determine whether it should be reduced (Article 110). 3. The European Union 65. Article 5(2) of Council Framework Decision of 13 June 2002 on the European arrest warrant provides: “if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure...” 4. Life sentences in the Contracting States 66. In his comparative study entitled “Outlawing Irreducible Life Sentences: Europe on the Brink?”, 23: 1 Federal Sentencing Reporter Vol 23, No 1 (October 2010), Professor Van Zyl Smit concluded that the majority of European countries do not have irreducible life sentences, and some, including Portugal, Norway and Spain, do not have life sentences at all. In Austria, Belgium, Czech Republic, Estonia, Germany, Lithuania, Luxembourg, Poland, Romania, Russia, Slovakia, Slovenia, Switzerland and Turkey, prisoners sentenced to life imprisonment have fixed periods after which release is considered. In France three such prisoners have no minimum period but it appears they can be considered for release after 30 years. In Switzerland there are provisions for indeterminate sentences for dangerous offenders where release can only follow new scientific evidence that the prisoner was not dangerous, although the provisions have not been used. The study concludes that only the Netherlands and England and Wales have irreducible life sentences. 5. The United Kingdom 67. R. v. Lichniak and R. v. Pyrah [2003] 1 AC 903, the House of Lords considered the compatibility of a mandatory life sentence as imposed in England and Wales with Articles 3 and 5 of the Convention. It found that, in its operation, a mandatory life sentence was not incompatible with either Article. Such a sentence was partly punitive, partly preventative. The punitive element was represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer had committed. The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considered it safe to release him, and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public (Lord Bingham of Cornhill at § 8 of the judgment). The House of Lords therefore held firstly, that the appellant’s complaints were not of sufficient gravity to engage Article 3 of the Convention and secondly, that the life sentence was not arbitrary or otherwise contrary to Article 5 § 1 of the Convention. Lord Bingham added: “If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights ... as being arbitrary and disproportionate.” 68. In R. v. Secretary of State for the Home Department, ex parte Hindley [2001] 1 AC 410, HL and R. v. Anderson [2003] 1 AC 837, HL, the House of Lords found that, under the tariff system then in operation, there was “no reason, in principle, why a crime or crimes, if sufficiently heinous should not be regarded as deserving lifelong incarceration for purposes of pure punishment” (per Lord Steyn at pp. 416H). Lord Steyn also observed: “there is nothing logically inconsistent with the concept of a tariff by saying that there are cases were the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence” (p. 417H). 69. Under the present statutory framework in England and Wales, Chapter 7 of the Criminal Justice Act 2003, a trial judge can impose a whole life term or order on a defendant convicted of murder. Such a defendant is not eligible for parole and can only be released by the Secretary of State. In R v. Bieber [2009] 1 WLR 223 the Court of Appeal considered that such whole life terms were compatible with Article 3 of the Convention. It found that a whole life order did not contravene Article 3 of the Convention because of the possibility of compassionate release by the Secretary of State. It also found that the imposition of an irreducible life sentence would not itself constitute a violation of Article 3 but rather that a potential violation would only occur once the offender had been detained beyond the period that could be justified on the ground of punishment and deterrence. The court stated: “45. While under English law the offence of murder attracts a mandatory life sentence, this is not normally an irreducible sentence. The judge specifies the minimum term to be served by way of punishment and deterrence before the offender’s release on licence can be considered. Where a whole life term is specified this is because the judge considers that the offence is so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days. For the reasons that we have given, we do not consider that the Strasbourg court has ruled that an irreducible life sentence, deliberately imposed by a judge in such circumstances, will result in detention that violates article 3. Nor do we consider that it will do so. 46. It may be that the approach of the Strasbourg court will change. There seems to be a tide in Europe that is setting against the imposition of very lengthy terms of imprisonment that are irreducible. Thus it may become necessary to consider whether whole life terms imposed in this jurisdiction are, in fact irreducible. ... Under the regime that predated the 2003 Act it was the practice of the Secretary of State to review the position of prisoners serving a whole life tariff after they had served 25 years with a view to reducing the tariff in exceptional circumstances, such as where the prisoner had made exceptional progress whilst in custody. No suggestion was then made that the imposition of a whole life tariff infringed article 3. ... Under the current regime the Secretary of State has a limited power to release a life prisoner under section 30 of the Crime (Sentences) Act 1997. ... At present it is the practice of the Secretary of State to use this power sparingly, in circumstances where, for instance, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, having particular regard to the requirement to comply with the Convention, the Secretary of State should not use his statutory power to release the prisoner. 49. For these reasons, applying the approach of the Strasbourg court in Kafkaris v Cyprus 12 February 2008, we do not consider that a whole life term should be considered as a sentence that is irreducible. Any article 3 challenge where a whole life term has been imposed should therefore be made, not at the time of the imposition of the sentence, but at the stage when the prisoner contends that, having regard to all the material circumstances, including the time that he has served and the progress made in prison, any further detention will constitute degrading or inhuman treatment.” 6. Germany 70. Article 1 of the Basic Law of the Federal Republic of Germany provides that human dignity shall be inviolable. Article 2(2) provides: “Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.” The compatibility of a mandatory sentence of life imprisonment for murder with these provisions was considered by the Federal Constitutional Court in the Life Imprisonment case of 21 June 1977, 45 BVerfGE 187 (an English translation of extracts of the judgment, with commentary, can be found in D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2 nd ed.), Duke University Press, Durham and London, 1997 at pp. 306-313). The court found that the State could not turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth. Respect for human dignity and the rule of law meant the humane enforcement of life imprisonment was possible only when the prisoner was given “a concrete and realistically attainable chance” to regain his freedom at some later point in time. The court underlined that prisons also had a duty to strive towards the re-socialisation of prisoners, to preserve their ability to cope with life and to counteract the negative effects of incarceration and the destructive changes in personality that accompanied imprisonment. It recognised, however, that, for a criminal who remained a threat to society, the goal of rehabilitation might never be fulfilled; in that case, it was the particular personal circumstances of the criminal which might rule out successful rehabilitation rather than the sentence of life imprisonment itself. The court also found that, subject to these conclusions, life imprisonment for murder was not a senseless or disproportionate punishment. 71. In the later War Criminal case 72 BVerfGE 105 (1986), where the petitioner was eighty-six years of age and had served twenty years of a life sentence imposed for sending fifty people to the gas chambers, the court considered that the gravity of a person’s crime could weigh upon whether he or she could be required to serve his or her life sentence. However, a judicial balancing of these factors should not place too heavy an emphasis on the gravity of the crime as opposed to the personality, state of mind, and age of the person. In that case, any subsequent review of the petitioner’s request for release would be required to weigh more heavily than before the petitioner’s personality, age and prison record. 72. In its decision of 16 January 2010, BVerfG, 2 BvR 2299/09, the Federal Constitutional Court considered an extradition case where the offender faced “aggravated life imprisonment until death” ( erschwerte lebenslängliche Freiheitsstrafe bis zum Tod ) in Turkey. The German government had sought assurances that he would be considered for release and had received the reply that the President of Turkey had the power to remit sentences on grounds of chronic illness, disability, or old age. The court refused to allow extradition, finding that this power of release offered only a vague hope of release and was thus insufficient. Notwithstanding the need to respect foreign legal orders, if someone had no practical prospect of release such a sentence would be cruel and degrading ( grausam und erniedrigend ) and would infringe the requirements of human dignity provided for in Article 1. 7. Canada 73. As stated at paragraph 43 above, section 12 of the Canadian Charter protects against cruel or unusual treatment or punishment. The Supreme Court of Canada has found that a grossly disproportionate sentence will amount to cruel and unusual treatment or punishment (see, inter alia, R v. Smith (Edward Dewey) [1987] 1 SCR 1045). In R v. Luxton [1990] 2 S.C.R. 711, the court considered that, for first degree murder, a mandatory minimum sentence of life imprisonment without eligibility for parole for twenty-five years was not grossly disproportionate. Similarly, in R v. Latimer 2001 1 SCR 3, for second degree murder, a mandatory minimum sentence of life imprisonment without eligibility for parole for ten years was not grossly disproportionate. The court observed that gross disproportionality would only be found on “rare and unique occasions” and that the test for determining this issue was “very properly stringent and demanding”. 8. South Africa 74. In Dodo v. the State (CCT 1/01) [2001] ZACC 16, the South African Constitutional Court considered whether a statutory provision which required a life sentence for certain offences including murder, was compatible with the constitutional principle of the separation of powers, the accused’s constitutional right to a public trial and the constitutional prohibition on cruel, inhuman or degrading treatment or punishment. The court found none of these constitutionals provisions was infringed, since the statute allowed a court to pass a lesser sentence if there were substantial and compelling circumstances. The court did, however, observe that the concept of proportionality went to the heart of the inquiry as to whether punishment was cruel, inhuman or degrading. 75. In Niemand v. The State (CCT 28/00) [2001] ZACC 11, the court found an indeterminate sentence imposed pursuant to a declaration that the defendant was a “habitual criminal” to be grossly disproportionate because it could amount to life imprisonment for a non-violent offender. The court “read in” a maximum sentence of fifteen years to the relevant statute. 9. Other jurisdictions 76. In Reyes v. the Queen [2002] UKPC 11 the Judicial Committee of the Privy Council considered that a mandatory death penalty for murder by shooting was incompatible with section 7 of the Constitution of Belize, which prohibits torture and ill-treatment in identical terms to Article 3 of the Convention. Lord Bingham observed that to deny the offender the opportunity, before sentence is passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate was to treat him as no human being should be treated. The relevant law was not saved by the powers of pardon and commutation vested by the Constitution in the Governor-General, assisted by an Advisory Council; in Lord Bingham’s words “a non-judicial body cannot decide what is the appropriate measure of punishment to be visited on a defendant for the crime he has committed”. 77. In de Boucherville v. the State of Mauritius [2008] UKPC 70 the appellant had been sentenced to death. With the abolition of the death penalty in Mauritius, his sentence was commuted to a mandatory life sentence. The Privy Council considered the Court’s judgment in Kafkaris, cited above, and found that the safeguards available in Cyprus to prevent Kafkaris from being without hope of release were not available in Mauritius. The Mauritian Supreme Court had interpreted such a sentence as condemning de Boucherville to penal servitude for the rest of his life and the provisions of the relevant legislation on parole and remission did not apply. This meant the sentence was manifestly disproportionate and arbitrary and so contrary to section 10 of the Mauritian Constitution (provisions to secure protection of law, including the right to a fair trial). It had also been argued by the appellant that the mandatory nature of the sentence violated section 7 of the Constitution (the prohibition of torture, inhuman or degrading punishment or other such treatment). In light of its conclusion on section 10, the Committee considered it unnecessary to decide that question or to consider the relevance of the possibility of release under section 75 (the presidential prerogative of mercy). It did, however, find that the safeguards available in Cyprus (in the form of the Attorney-General’s powers to recommend release and the President’s powers to commute sentences or decree release) were not available in Mauritius. It also acknowledged the appellant’s argument that, as with the mandatory sentence of death it had considered in Reyes, a mandatory sentence of life imprisonment did not allow for consideration of the facts of the case. The Privy Council also considered any differences between mandatory sentences of death and life imprisonment could be exaggerated and, to this end, quoted with approval the dicta of Lord Justice Laws in Wellington and Lord Bingham in Lichniak (at paragraphs 35 and 67 above). 78. In State v. Philibert [2007] SCJ 274, the Supreme Court of Mauritius held that a mandatory sentence of 45 years’ imprisonment for murder amounted to inhuman or degrading treatment in violation of section 7 on the grounds that it was disproportionate. 79. In State v. Tcoeib [1997] 1 LRC 90 the Namibian Supreme Court considered the imposition of a discretionary life sentence to be compatible with section 8 of the country’s constitution (subsection (c) of which is identical to Article 3 of the Convention). Chief Justice Mahomed, for the unanimous court, found the relevant statutory release scheme to be sufficient but observed that if release depended on the “capricious exercise” of the discretion of the prison or executive authorities, the hope of release would be “too faint and much too unpredictable” for the prisoner to retain the dignity required by section 8. It was also observed that life imprisonment could amount to cruel, inhuman or degrading treatment if it was grossly disproportionate to the severity of the offence. The High Court of Namibia found mandatory minimum sentences for robbery and possession of firearms to be grossly disproportionate in State v. Vries 1997 4 LRC 1 and State v Likuwa [2000] 1 LRC 600. 80. In Lau Cheong v. Hong Kong Special Administrative Region [2002] HKCFA 18, the Hong Kong Court of Final Appeal rejected a challenge to the mandatory life sentence for murder. It found that the possibility of regular review of the sentence by an independent board meant it was neither arbitrary nor grossly disproportionate and thus it did not amount to cruel, inhuman or degrading punishment. 81. Section 9 of the New Zealand Bill of Rights Act 1990 also protects against disproportionately severe treatment or punishment. THE LAW I. JOINDER OF THE APPLICATIONS 82. Given their similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court. II. THE ALLEGED RISK OF THE DEATH PENALTY A. The first applicant 83. The first applicant complained that there was a real risk that he would be subjected to the death penalty in Florida. The assurance contained in the Diplomatic Note was an undertaking given by the United States federal government. However, he would not be tried in federal courts but in Florida. The undertakings given by the Assistant State Attorneys and Judge Weatherby were insufficient as they did not have the power to give them and, moreover, Judge Weatherby’s undertaking would not be binding on any subsequent trial judge. The undertakings were also ultra vires and unenforceable. The Florida statute was mandatory: once a defendant was convicted of a capital felony, the trial court had to conduct a sentencing hearing to decide whether the death penalty should be imposed (see section 921.141 of the Florida Statute, at paragraph 53 above). He further relied on the evidence of Mr Barksdale that the prosecution’s decision not to seek the death penalty did not preclude the trial court from imposing it (see paragraph 54 above). 84. The Government submitted that there was no real risk of the applicant being sentenced to death in Florida. They relied on the original affidavit in support of the extradition request, the Diplomatic Note of 3 June 2005, the order of Judge Weatherby and the further affidavit of Mr Borello. The assurances given therein could be relied upon. 85. The Court recalls its finding in Ahmad and others v. the United Kingdom (dec.), nos. 24027/07, 11949/08 and 36742/08, § 105, 6 July 2010 that, in extradition matters, Diplomatic Notes are a standard means for the requesting State to provide any assurances which the requested State considers necessary for its consent to extradition. In Ahmad and others, the Court also recognised that, in international relations, Diplomatic Notes carry a presumption of good faith and that, in extradition cases, it was appropriate that that presumption be applied to a requesting State which has a long history of respect for democracy, human rights and the rule of law, and which has longstanding extradition arrangements with Contracting States. The Court also recalls the particular importance it has previously attached to prosecutorial assurances in respect of the death penalty ( Nivette v. France (dec.), no. 44190/08, 14 December 2000). 86. For these reasons, the Court considers that the assurances provided by the Government of the United States, the prosecution in Florida and Judge Weatherby are clear and unequivocal. They must be accorded the same presumption of good faith as was given to the similar assurances provided in the Ahmad and others case. The Court is satisfied that, despite the applicant’s submissions as to their status in Florida law, the assurances provided by the Assistant State Attorneys, Mr Kimbrel and Mr Borello, make clear that the prosecution will not seek the death penalty. Moreover, whatever Mr Barksdale’s views as to the ability of a trial court to impose the death penalty even when it is not sought by the prosecution, the Court finds that Judge Weatherby’s order makes it clear that there is no risk of any death penalty sentencing phase being conducted in this case, still less that any sentencing case will result in the imposition of the death penalty. Consequently, the Court finds that the assurances provided by the Florida authorities, when taken with the assurance contained in the Diplomatic Note, are sufficient to remove any risk that the first applicant would be sentenced to death if extradited and convicted as charged. Accordingly, the Court finds that this complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3(a) and 4 of the Convention. B. The second applicant 87. Although it did not form part of the second applicant’s original complaints before the Court, given the importance of the issue, the Court considered it necessary to obtain the parties’ submissions on whether, in the event of the second applicant’s conviction, the trial court in Maryland could impose the death penalty on its own motion. 88. In their submissions, the Government recalled that the prosecuting attorney in Maryland, Mr Michael, had provided an affidavit stating the maximum applicable sentence was life imprisonment without the possibility of parole (see paragraph 30 above). The Diplomatic Note of 5 June 2007 was binding as a matter of international law and had been provided in good faith. The Government’s understanding of the Maryland Criminal Code was that the death sentence could only be imposed if the State gave written notice of its intention to seek it and the State did not intend to do so. 89. The second applicant stated that his understanding was the same. His real concern on the issue of the death penalty had been that the facts of the case did not display any of the “aggravating features” necessary for the death penalty. However, there was no guarantee that further pre-trial enquiries would not reveal such evidence, leading the State to then seek the death penalty. Those concerns had prompted him to make written representations to the Secretary of State, which, in turn, had prompted the Diplomatic Note of 5 June 2007. He understood the Diplomatic Note to be an assurance that the death penalty would not be sought or imposed in any circumstances whatsoever. Moreover, he understood that the United Kingdom Government construed the note in the same way; that the United Kingdom Government would regard the seeking or imposition of the death penalty in any circumstances or upon the court’s own motion as a breach of that assurance; and that they would use all conceivable means at their disposal to prevent such a breach. On that basis, he made no complaint in respect of the death penalty. 90. In their further submissions, the Government confirmed that they would consider it a breach of the diplomatic assurance contained in the note if the trial court sought or imposed the death penalty. 91. The Court takes note of the parties’ positions, their understanding of the Maryland Criminal Code, the clear and unequivocal nature of the Diplomatic Note furnished by the United States’ Government and, most importantly, the assurance given by Mr Michael in his affidavit not to file notice of intention to seek the death penalty. Since it has no reason to doubt Mr Michael’s assurance, which would appear to preclude the trial court from imposing the death penalty on its own motion, the Court is satisfied that there would be no risk of the death penalty being imposed. Accordingly, the Court finds that this complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3(a) and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ARISING FROM THE IMPOSITION OF LIFE IMPRISONMENT WITHOUT PAROLE 92. Each applicant complained that his extradition would expose him to a real risk of a sentence of life imprisonment without the possibility of parole in breach of Article 3 of the Convention, which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1. The applicants a. The first applicant 93. The first applicant submitted that the House of Lords had erred in Wellington. The Court’s rulings in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996 ‑ V and Saadi v. Italy [GC], no. 37201/06, ECHR 2008 ‑ ... meant there was no possibility of balancing Article 3 rights with other considerations which arose in extradition cases. It was inappropriate for the Court to consider the Canadian case of Burns and Ferris, as the Government had urged (see paragraph 105 below); those cases had been about the qualified right in the Canadian Charter on fundamental justice, not the Charter’s prohibition on cruel and unusual treatment or punishment. 94. It was also relevant to his case that, as a United Kingdom national, he could be tried in England and Wales for a murder alleged to have been committed abroad. The High Court had been wrong to consider this possibility as “wholly unreal” (see paragraph 20 above); it was no less real than the possibility of Soering being tried in Germany. There was, therefore, no need to follow the relativist approach laid down in Wellington, which had arisen because of the impossibility of trying Wellington in the England and Wales. 95. The first applicant relied on the fact that he faced a mandatory life sentence, which removed any judicial discretion in sentencing. This was even more arbitrary in his case given that he could be convicted under the felony murder rule, even if it were found that Mr Hayes had been killed accidentally. Contrary to the High Court’s view, it was not “fanciful” that the first applicant was at risk of conviction on the basis of a true accident (see paragraph 65 of its judgment, quoted at paragraph 21 above). In fact, it appeared from some of Mr Glover’s statements to the police and prosecution that his evidence at trial would be that the gun had gone off accidentally. This was supported by the police and medical reports on the murder (see paragraph 6 above). The first applicant also submitted that, because of the breadth of the felony murder rule, he could also be convicted on the basis that he had lent his car to one of the men who had participated in the robbery of Mr Hayes (see also paragraph 6 above). 96. The facts of the case also meant that were other avenues of prosecution, such as for second-degree murder, third-degree murder or manslaughter. This underlined that a mandatory sentence of life imprisonment without parole was grossly disproportionate, harsh and unfair. This was even more so in his case given that, according to a psychiatrist who examined him, the first applicant was very immature and suffering from a severe personality disorder. The first applicant submitted a copy of the psychiatrist’s report, which concluded that he demonstrated features of Histrionic and Dependent personality disorder together with features of Narcissistic and Borderline personality disorder. This would make him less able to cope with a long period of imprisonment, particularly when systematic bullying and sexual abuse in American prisons were common public knowledge. He also had no previous convictions for violent or drug-related offences. He thus had substantial mitigation available to him but, because of the mandatory nature of the life sentence, he could not put it before the sentencing court. 97. The first applicant also submitted that the facts of the offence were not ones which would result in a mandatory whole life sentence in any Contracting State or even in the vast majority of the States within the United States. It was also of some relevance that the felony murder rule had been abolished in England and Wales by the Homicide Act 1957. Moreover, even if his offence could be categorised as murder in English law, under present sentencing practices, he would not be eligible for a whole life sentence: there were no aggravating factors which made such a sentence possible and it was, in any event, prohibited for offenders under twenty-one years of age. 98. The first applicant also relied on the fact that the felony murder rule had been found by the Supreme Court of Canada to be contrary to section 7 of the Canadian Charter in R. v. Martineau [1990] 2 SCR 633 (which prohibits imprisonment except in accordance with the fundamental principles of justice, see paragraph 43 above). The Supreme Court found that the stigma of a murder conviction required that only those who had subjective foresight of death be convicted of and punished for that crime. It was clear from Martineau that the Supreme Court had taken the view that the felony murder rule had no place in a democratic society. 99. The first applicant further submitted that a further violation of Article 3 would arise because his sentence in Florida would be irreducible: Professor Babcock’s evidence showed that his chances of obtaining commutation from the Governor were remote (see paragraph 55 above). b. The second applicant 100. The second applicant considered that, if convicted, his sentence would ultimately be a matter for the trial judge but the prosecution’s intention to seek such a sentence and its availability meant there was a real risk of its imposition. That sentence constituted, of itself, inhuman and degrading punishment in violation of Article 3. He relied on the Privy Council’s observation in de Boucherville (see paragraph 77 above) that such a sentence was anathema to the principle that life was of inalienable value. 101. Contrary to the Government’s submission (see below), it was of no relevance to the question of reducibility that any sentence imposed by the trial court was subject to review on appeal, since an appeal had to be lodged within thirty days of sentencing. On the question of reducibility he accepted, in the light of Kafkaris, that the existence of the Governor of Maryland’s discretion to commute a sentence amounted to a theoretical or de jure possibility of release. He did, however, note that the Governor’s decision was attended by none of the procedural safeguards of a judicial decision. It was unreasoned and not guided by any discernible criteria. It was not available as of right and was not susceptible to review. 102. There was, in any event, no de facto possibility of release. The information provided by the Department of Public Safety and Correctional Services (see paragraph 58 above) showed that of 367 offenders serving sentences of life imprisonment without the possibility of parole, only one person (a repeat offender) had had his sentence commuted but had not been released and no one convicted of first-degree murder had ever been granted a commutation of any kind. The second applicant’s case was therefore distinguishable from Kafkaris. It was also distinguishable from Einhorn, § 20, cited above, where the Governor of Pennsylvania had, in the eight-year period from 1987-1994, issued 302 releases and 26 commutations of life-sentenced prisoners. It was also to be distinguished from the position in England and Wales, considered in Bieber (see paragraph 69 above), where the Court of Appeal had taken account of the fact that the Secretary of State had used his power to release life prisoners “sparingly”. The complete lack of hope of release in his case was borne out by the prosecution’s intention, in the event of conviction, to seek consecutive sentences for the offences for which he was charged. 103. Even if a life sentence where there was de facto possibility of release did not violate Article 3 per se, the applicant submitted that, because of his young age, such a sentence would violate Article 3 in his case. He was nineteen at the time of the offences and had no serious criminal record, but the United States’ authorities had confirmed that the Maryland courts would be unlikely to attach much weight to these factors. There was a difference between the imposition of such a sentence on someone of that age and an older person. The time in prison would be longer but, more importantly, the prospects of a young man maturing and reforming whilst in prison were greater, as was the likelihood that the offences were attributable to immaturity. He relied in particular on the Court’s observations in Hussain v. the United Kingdom and Prem Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I that detaining young persons for the rest of their lives might give rise to questions under Article 3 of the Convention ( Hussain at paragraph 53; Prem Singh at paragraph 61). In common with the first applicant, he considered it to be of some relevance that, in England and Wales, whole life orders were not permitted for offenders under twenty-years of age. The second applicant further relied on Article 37(a) of the United Nations Convention on the Rights of the Child, which prohibits the imposition of life imprisonment without the possibility of parole for offences committed by persons below eighteen years of age, as evidence of a clear statement by the international community that, in the context of such sentences, the youth of the offender was of paramount importance. 104. Finally, and in common with the first applicant, the second applicant argued that the majority of the House of Lords in Wellington had erred in its relativist approach to Article 3 in the extradition context and that the Canadian cases were irrelevant to the issues before the Court. 2. The Government a. General considerations 105. The Government relied on the reasoning of the House of Lords in Wellington and the Canadian Supreme Court in Burns and Ferris (see paragraphs 34–42 and 44 and 45 above). On the basis of those cases, the Government submitted that, in the extradition context, a distinction had to be drawn between torture and other forms of ill-treatment. A real risk of torture in the receiving State should be an absolute bar on extradition. However, for all other forms of ill-treatment, it was legitimate to consider the policy objectives pursued by extradition in determining whether the ill-treatment reached the minimum level of severity required by Article 3. This was the appropriate means of resolving the tension that existed between the Court’s judgments in Soering, on the one hand, and Chahal and Saadi, on the other. Article 3 could not be interpreted as meaning that any form of ill-treatment in a non-Contracting State would be sufficient to prevent extradition. 106. The Government further relied on the Court’s rulings in Kafkaris and Léger v. France (striking out) [GC], no. 19324/02, 30 March 2009 and the United Kingdom courts’ rulings in Wellington and Bieber (see paragraphs 34–42 and 69 above). In particular, they submitted that, in Wellington, the House of Lords had been correct to find that, while an irreducible life sentence might raise an issue under Article 3, it would not violate Article 3 at the time of its imposition unless it was grossly or clearly disproportionate. 107. Drawing on the views of the House of Lords in Wellington, the Government further submitted that, unless a life sentence was grossly or clearly disproportionate, Article 3 would only be violated by an irreducible life sentence if the prisoner’s further imprisonment could no longer be justified for the purposes of punishment and deterrence. No court could determine at the outset of the sentence when that point would be reached and, in a particular case, it might never be reached at all. Therefore, in the extradition context, unless a life sentence was grossly or clearly disproportionate, its compatibility with Article 3 could not be determined in advance of extradition. Neither applicants’ likely sentence was grossly or clearly disproportionate and each of their sentences was reducible, as required by Kafkaris. b. The first applicant’s case 108. In the first applicant’s case, the Government stated that there was no possibility of prosecution in the United Kingdom and the case bore no resemblance to Soering, cited above, where the German Government had actively sought to prosecute the applicant. 109. The Government recalled that the High Court had accepted that, upon extradition to Florida, there was a realistic possibility of prosecution under the felony murder rule. It was not the Government’s position that the case against the applicant was one of premeditated killing. It had been accepted by the Government in the High Court proceedings that the case against the first applicant might be put on the basis that he killed Mr Hayes in the course of the robbery without the prosecution having to prove that the first applicant intended to kill Mr Hayes. It was not accepted by the Government that the fact that it was open to the prosecution to put the case on this basis demonstrated that the killing was accidental or that the first applicant did not intend to kill Mr Hayes. 110. In this connection, the Government recalled that there was evidence that the first applicant planned to rob Mr Hayes at gunpoint and carried an already loaded and cocked weapon for that purpose (see the affidavit of Mr Kimbrel at paragraphs 6 and 7 above). Consequently, the Government did not accept the first applicant’s contention that the prosecution’s case against him was that the gun which killed Mr Hayes went off accidentally. Nor did the Government accept that deliberate violence inflicted in the course of a robbery with a loaded and cocked weapon could properly be characterised as accidental killing or that such conduct would not amount to murder in English law. Even for an offender aged under twenty-one, murder with a firearm or in the course of a robbery could attract a minimum sentence of thirty years’ imprisonment in England and Wales. The first applicant could not derive any assistance from the Supreme Court of Canada’s ruling in Martineau. The Supreme Court had accepted that a different approach was required in extradition cases and the ruling had not been universally accepted; for example, it had not been followed by the Privy Council in Khan v. Trinidad and Tobago [2003] UKPC 79. In any event, these were matters for the jury in any Florida trial and it was clear that conviction under the felony murder rule was reserved only for those offenders who killed in the course of the gravest of offences. Finally, there was also no evidence that the prosecution intended to prosecute the first applicant on the basis that he had lent his car to one of the men who had participated in the robbery: the case against the applicant was that he had shot Mr Hayes in the course of the robbery. 111. The first applicant’s age was not significant. He was just weeks short of his twenty-first birthday when the killing took place. There was no suggestion that he lacked mental capacity. His own psychiatrist’s report appeared to indicate that, prior to the killing, the first applicant had been living a violent, criminal lifestyle. The psychiatric report had also stopped short of diagnosing him with a psychiatric disorder such as Narcissistic or Borderline Personality Disorder. 112. On the evidence provided by the United States’ authorities, there was a well-developed system for the granting of executive clemency in Florida and clear practice of commutations. Professor Babcock’s evidence did not support the conclusion that there was no prospect of the Governor granting clemency in first degree murder cases in the future. Life imprisonment without parole had only been introduced in Florida sixteen years ago (in 1994) and it was realistic to assume that many of those who had received that sentence would be expected to serve sentences well in excess of that period before being considered for commutation. 113. For these reasons, the Government submitted that the first applicant’s sentence was reducible and, even if it were not reducible, it was not grossly or clearly disproportionate. c. The second applicant’s case 114. In the second applicant’s case, the Government did not accept that he faced a real risk of a sentence of life imprisonment without the possibility of parole. All three possible sentences for homicide (the death penalty, life imprisonment without the possibility of parole and life imprisonment) had been imposed in Maryland and, over the past 31 years, 11 individuals per year had been sentenced to life imprisonment without the possibility of parole, which suggested such a sentence was not necessarily typical and by no means mandatory or inevitable. The court in Maryland would not be bound to impose that sentence and, while the prosecutor Mr Michael could not estimate how likely it was that such a sentence would be imposed, he had made it clear that youth and no prior history of serious offending were generally regarded as mitigating factors (see paragraph 30 above). The United States Department of Justice had confirmed this position in its letter of 29 May 2008 (see paragraph 57 above). 115. If such a sentence were to be imposed it would reducible, given the powers of commutation and pardon of the Governor of Maryland. In Maryland life sentences without the possibility of parole for homicide were relatively recent. It was reasonable to assume that those subject to such a sentence since 1987 had been convicted of murders which would have attracted very substantial sentences if life sentences with the possibility of parole had been imposed instead. It was not surprising, therefore, that no one had been released so far and this did not preclude the possibility of future releases. The relatively few commutations could also be explained by the right of defendants sentenced to life imprisonment without parole in Maryland to have their sentences reviewed by a three-judge panel on appeal. This appellate review was a form of reducibility contemplated by the Court in Kafkaris. 116. The Government further submitted that the second applicant had been accused of a brutal ‘execution’ style murder of one victim and the attempted murder of another. He was not under eighteen at the time of the offences nor was he suffering from any mental impairment. The UN Convention on the Rights of the Child was therefore irrelevant and only demonstrative of an international consensus against life imprisonment without parole for those under the age of eighteen. The imposition of a sentence of life imprisonment without parole would not be grossly disproportionate in his case. 117. Finally, and contrary to the second applicant’s submissions (see paragraph 100 above), the Mauritian case of de Boucherville was of limited assistance. De Boucherville had been sentenced to death and had his sentence commuted to a mandatory life sentence. He was seventy-eight years of age at the time of his appeal, had spent ten years on death row and then served a further twelve years of his life sentence. The Privy Council had decided the appeal on the basis of the right to a fair trial rather than on the Mauritian Constitution’s prohibition on ill-treatment. B. Admissibility 118. The Court notes that the neither complaint is manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. It further notes that neither complaint is inadmissible on any other grounds. Each complaint must therefore be declared admissible. C. Merits 1. General considerations a. Article 3 in the extra-territorial context 119. The Court begins by observing that the House of Lords in Wellington has identified a tension between Soering and Chahal, both cited above, which calls for clarification of the proper approach to Article 3 in extradition cases. It also observes that the conclusions of the majority of the House of Lords in that case depended on three distinctions which, in their judgment, were to be found in this Court’s case-law. The first was between extradition cases and other cases of removal from the territory of a Contracting State; the second was between torture and other forms of ill-treatment proscribed by Article 3; and the third was between the assessment of the minimum level of severity required in the domestic context and the same assessment in the extra-territorial context. It is appropriate to consider each distinction in turn. 120. For the first distinction, the Court considers that the question whether there is a real risk of treatment contrary to Article 3 in another State cannot depend on the legal basis for removal to that State. The Court’s own case-law has shown that, in practice, there may be little difference between extradition and other removals. For example, extradition requests may be withdrawn and the Contracting State may nonetheless decide to proceed with removal from its territory (see Muminov v. Russia, no. 42502/06, § 14, 11 December 2008). Equally, a State may decide to remove someone who faces criminal proceedings (or has already been convicted) in another State in the absence of an extradition request (see, for example, Saadi v. Italy, cited above, and Bader and Kanbor v. Sweden, no. 13284/04, ECHR 2005 ‑ XI). Finally, there may be cases where someone has fled a State because he or she fears the implementation of a particular sentence that has already been passed upon him or her and is to be returned to that State, not under any extradition arrangement, but as a failed asylum seeker (see D. and Others v. Turkey, no. 24245/03, 22 June 2006). The Court considers that it would not be appropriate for one test to be applied to each of these three cases but a different test to be applied to a case in which an extradition request is made and complied with. 121. For the second distinction, between torture and other forms ofill-treatment, it is true that some support for this distinction and, in turn, the approach taken by the majority of the House of Lords in Wellington, can be found in the Soering judgment. The Court must therefore examine whether that approach has been borne out in its subsequent case-law. 122. It is correct that the Court has always distinguished between torture on the one hand and inhuman or degrading punishment on the other (see, for instance, Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25; Selmouni v. France [GC], no. 25803/94, §§ 95-106, ECHR 1999 ‑ V). However, the Court considers that this distinction is more easily drawn in the domestic context where, in examining complaints made under Article 3, the Court is called upon to evaluate or characterise acts which have already taken place. Where, as in the extra-territorial context, a prospective assessment is required, it is not always possible to determine whether the ill-treatment which may ensue in the receiving State will be sufficiently severe to qualify as torture. Moreover, the distinction between torture and other forms of ill-treatment can be more easily drawn in cases where the risk of the ill-treatment stems from factors which do not engage either directly or indirectly the responsibility of the public authorities of the receiving State (see, for example, D. v. the United Kingdom, 2 May 1997, Reports of Judgments and Decisions 1997 ‑ III, where the Court found that the proposed removal of a terminally ill man to St Kitts would be inhuman treatment and thus in violation of Article 3). 123. For this reason, whenever the Court has found that a proposed removal would be in violation of Article 3 because of a real risk of ill-treatment which would be intentionally inflicted in the receiving State, it has normally refrained from considering whether the ill-treatment in question should be characterised as torture or inhuman or degrading treatment or punishment. For example, in Chahal the Court did not distinguish between the various forms of ill-treatment proscribed by Article 3: at paragraph 79 of its judgment the Court stated that the “Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment”. In paragraph 80 the Court went on to state that: “The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion ...” Similar passages can be found, for example, in Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005 ‑ I and Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008 ‑ ... where, in reaffirming this test, no distinction was made between torture and other forms of ill-treatment. 124. The Court now turns to whether a distinction can be drawn between the assessment of the minimum level of severity required in the domestic context and the same assessment in the extra-territorial context. The Court recalls its statement in Chahal, cited above, § 81 that it was not to be inferred from paragraph 89 of Soering that there was any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 was engaged. It also recalls that this statement was reaffirmed in Saadi v. Italy, cited above, § 138, where the Court rejected the argument advanced by the United Kingdom Government that the risk of ill-treatment if a person is returned should be balanced against the danger he or she posed. In Saadi the Court also found that the concepts of risk and dangerousness did not lend themselves to a balancing test because they were “notions that [could] only be assessed independently of each other” (ibid. § 139). The Court finds that the same approach must be taken to the assessment of whether the minimum level of severity has been met for the purposes of Article 3: this too can only be assessed independently of the reasons for removal or extradition. 125. The Court considers that its case-law since Soering confirms this approach. Even in extradition cases, such as where there has been an Article 3 complaint concerning the risk of life imprisonment without parole, the Court has focused on whether that risk was a real one, or whether it was alleviated by diplomatic and prosecutorial assurances given by the requesting State (see Olaechea Cahuas v. Spain, no. 24668/03, §§ 43 and 44, 10 August 2006; Youb Saoudi v. Spain (dec.), no. 22871/06, 18 September 2006; Salem v. Portugal (dec.), no. 26844/04, 9 May 2006; and Nivette v. France (dec.), no. 44190/98, ECHR 2001 ‑ VII). In those cases, the Court did not seek to determine whether the Article 3 threshold has been met with reference to the factors set out in paragraph 89 of the Soering judgment. By the same token, in cases where such assurances have not been given or have been found to be inadequate, the Court has not had recourse to the extradition context to determine whether there would be a violation of Article 3 if the surrender were to take place (see, for example, Soldatenko v. Ukraine, no. 2440/07, §§ 66-75, 23 October 2008). Indeed in the twenty-two years since the Soering judgment, in an Article 3 case the Court has never undertaken an examination of the proportionality of a proposed extradition or other form of removal from a Contracting State. To this extent, the Court must be taken to have departed from the approach contemplated by paragraphs 89 and 110 of the Soering judgment. 126. Finally, the Court considers that, in interpreting Article 3, limited assistance can be derived from the approach taken by the Canadian Supreme Court in Burns and Ferras (see paragraphs 44 and 45 above). As the applicants have observed, those cases were about the provision of the Canadian Charter on fundamental justice and not the Charter’s prohibition of cruel or unusual treatment or punishment. Furthermore, the Charter system expressly provides for a balancing test in respect of both of those rights, which mirrors that found in Articles 8-11 of the Convention but not Article 3 (see section 1 of the Charter at paragraph 43 above). 127. Instead, the Court considers that greater interpretative assistance can be derived from the approach which the Human Rights Committee has taken to the prohibition on torture and ill-treatment contained in Article 7 of the ICCPR. The Committee’s General Comment No. 20 (see paragraph 46 above) makes clear that Article 7 prevents refoulement both when there is a real risk of torture and when there is a real risk of other forms of ill-treatment. Further, recent confirmation for the approach taken by the Court and by the Human Rights Committee can be found in Article 19 of the Charter on Fundamental Rights of the European Union, which provides that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment (see paragraph 50 above). The wording of Article 19 makes clear that it applies without consideration of the extradition context and without distinction between torture and other forms of ill-treatment. In this respect, Article 19 of the Charter is fully consistent with the interpretation of Article 3 which the Court has set out above. It is also consistent with the Council of Europe Guidelines on human rights and the fight against terrorism, quoted at paragraph 49 above. Finally, the Court’s interpretation of Article 3, the Human Rights Committee’s interpretation of Article 7 of the ICCPR, and the text of Article 19 of the Charter are in accordance with Articles 3 and 16 § 2 of the United Nations Convention Against Torture, particularly when the latter Article provides that the provisions of the Convention are “without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion” (see paragraph 47 and 48 above). 128. The Court therefore concludes that the Chahal ruling (as reaffirmed in Saadi ) should be regarded as applying equally to extradition and other types of removal from the territory of a Contracting State and should apply without distinction between the various forms of ill-treatment which are proscribed by Article 3. 129. However, in reaching this conclusion, the Court would underline that it agrees with Lord Brown’s observation in Wellington that the absolute nature of Article 3 does not mean that any form of ill-treatment will act as a bar to removal from a Contracting State. As Lord Brown observed, this Court has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States (see, as a recent authority, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, 7 July 2011). This being so, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case. For example, a Contracting State’s negligence in providing appropriate medical care within its jurisdiction has, on occasion, led the Court to find a violation of Article 3 but such violations have not been so readily established in the extra-territorial context (compare the denial of prompt and appropriate medical treatment for HIV/AIDS in Aleksanyan v. Russia, no. 46468/06, §§ 145–158, 22 December 2008 with N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008). 130. Equally, in the context of ill-treatment of prisoners, the following factors, among others, have been decisive in the Court’s conclusion that there has been a violation of Article 3: - the presence of premeditation ( Ireland v. the United Kingdom, cited above, § 167); - that the measure may have been calculated to break the applicant’s resistance or will (ibid, § 167; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 446, ECHR 2004 ‑ VII); - an intention to debase or humiliate an applicant, or, if there was no such intention, the fact that the measure was implemented in a manner which nonetheless caused feelings of fear, anguish or inferiority ( Jalloh v. Germany [GC], no. 54810/00, § 82, ECHR 2006 ‑ IX; Peers v. Greece, no. 28524/95, § 75, ECHR 2001 ‑ III); - the absence of any specific justification for the measure imposed ( Van der Ven v. the Netherlands, no. 50901/99, §§ 61-62, ECHR 2003 ‑ II; Iwańczuk v. Poland, no. 25196/94, § 58, 15 November 2001); - the arbitrary punitive nature of the measure (see Yankov, cited above, § 117); - the length of time for which the measure was imposed ( Ireland v. the United Kingdom, cited above, § 92); and - the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention ( Mathew v. the Netherlands, no. 24919/03, §§ 197-205, ECHR 2005 ‑ IX). The Court would observe that all of these elements depend closely upon the facts of the case and so will not be readily established prospectively in an extradition or expulsion context. 131. Finally, the Court reiterates that, as was observed by Lord Brown, it has been very cautious in finding that removal from the territory of a Contracting State would be contrary to Article 3 of the Convention. It has only rarely reached such a conclusion since adopting the Chahal judgment (see Saadi, cited above § 142). The Court would further add that, save for cases involving the death penalty, it has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect for democracy, human rights and the rule of law. b. Life sentences 132. The Court takes note of the parties’ submissions as to whether the applicants’ likely sentences are irreducible within the meaning of that term used in Kafkaris. However, given the views expressed by the House of Lords in Wellington and the Court of Appeal in Bieber in respect of Kafkaris (summarised at paragraphs 34–42 and 69 above), the Court considers it necessary to consider first whether, in the context of removal to another State, a grossly disproportionate sentence would violate Article 3 and second, at what point in the course of a life or other very long sentence an Article 3 issue might arise. 133. For the first issue, the Court observes that all five Law Lords in Wellington found that, in a sufficiently exceptional case, an extradition would be in violation of Article 3 if the applicant faced a grossly disproportionate sentence in the receiving State. The Government, in their submissions to the Court, accepted that proposition. Support for this proposition can also be found in the comparative materials before the Court. Those materials demonstrate that “gross disproportionality” is a widely accepted and applied test for determining when a sentence will amount to inhuman or degrading punishment, or equivalent constitutional norms (see the Eighth Amendment case-law summarised at paragraphs 59–61 above, the judgments of the Supreme Court of Canada at paragraph 73 above, and the further comparative materials set out at paragraphs 76– 81 above). Consequently, the Court is prepared to accept that while, in principle, matters of appropriate sentencing largely fall outside the scope of Convention ( Léger, cited above, § 72), a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, the Court also considers that the comparative materials set out above demonstrate that “gross disproportionality” is a strict test and, as the Supreme Court of Canada observed in Latimer (see paragraph 73 above), it will only be on “rare and unique occasions” that the test will be met. 134. The Court also accepts that, in a removal case, a violation would arise if the applicant were able to demonstrate that he or she was at a real risk of receiving a grossly disproportionate sentence in the receiving State. However, as the Court has recalled at paragraph 129 above, the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States. Due regard must be had for the fact that sentencing practices vary greatly between States and that there will often be legitimate and reasonable differences between States as to the length of sentences which are imposed, even for similar offences. The Court therefore considers that it will only be in very exceptional cases that an applicant will be able to demonstrate that the sentence he or she would face in a non-Contracting State would be grossly disproportionate and thus contrary to Article 3. 135. The Court now turns to the second issue raised by the Court of Appeal and House of Lords. It considers that, subject to the general requirement that a sentence should not be grossly disproportionate, for life sentences it is necessary to distinguish between three types of sentence: (i) a life sentence with eligibility for release after a minimum period has been served; (ii) a discretionary sentence of life imprisonment without the possibility of parole; and (iii) a mandatory sentence of life imprisonment without the possibility of parole. 136. The first sentence is clearly reducible and no issue can therefore arise under Article 3. 137. For the second, a discretionary sentence of life imprisonment without the possibility of parole, the Court observes that normally such sentences are imposed for offences of the utmost severity, such as murder or manslaughter. In any legal system, such offences, if they do not attract a life sentence, will normally attract a substantial sentence of imprisonment, perhaps of several decades. Therefore, any defendant who is convicted of such an offence must expect to serve a significant number of years in prison before he can realistically have any hope of release, irrespective of whether he is given a life sentence or a determinate sentence. It follows, therefore, that, if a discretionary life sentence is imposed by a court after due consideration of all relevant mitigating and aggravating factors, an Article 3 issue cannot arise at the moment when it is imposed. Instead, the Court agrees with the Court of Appeal in Bieber and the House of Lords in Wellington that an Article 3 issue will only arise when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds (such as punishment, deterrence, public protection or rehabilitation); and (ii) as the Grand Chamber stated in Kafkaris, cited above, the sentence is irreducible de facto and de iure. 138. For the third sentence, a mandatory sentence of life imprisonment without the possibility of parole, the Court considers that greater scrutiny is required. The vice of any mandatory sentence is that it deprives the defendant of any possibility to put any mitigating factors or special circumstances before the sentencing court (see, for instance, Reyes and de Boucherville at paragraphs 76 and 77 above). This is especially true in the case of a mandatory sentence of life imprisonment without the possibility of parole, a sentence which, in effect, condemns a defendant to spend the rest of his days in prison, irrespective of his level of culpability and irrespective of whether the sentencing court considers the sentence to be justified. However, in the Court’s view, these considerations do not mean that a mandatory sentence of life imprisonment without the possibility of parole is per se incompatible with the Convention, although the trend in Europe is clearly against such sentences (see, for example, the comparative study summarised at paragraph 66 above). Instead, these considerations mean that such a sentence is much more likely to be grossly disproportionate than any of the other types of life sentence, especially if it requires the sentencing court to disregard mitigating factors which are generally understood as indicating a significantly lower level of culpability on the part of the defendant, such as youth or severe mental health problems (see, for instance, Hussain v. the United Kingdom and Prem Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I at paragraphs 53 and 61 respectively and the Canadian case of Burns, at paragraph 93, quoted at paragraph 44 above). The Court concludes therefore that, in the absence of any such gross disproportionality, an Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole in the same way as for a discretionary life sentence, that is when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) that the sentence is irreducible de facto and de iure ( Kafkaris, cited above). 2. The present cases a. The first applicant 139. In the first applicant’s case, the Court notes that he faces a mandatory sentence of life imprisonment without parole, which, as it has indicated, requires greater scrutiny than other forms of life sentence. However, the Court is not persuaded that such a sentence would be grossly disproportionate in his case. Although he was twenty years of age at the time of the alleged offence, he was not a minor. Article 37(a) of the United Nations Convention on the Rights of the Child demonstrates an international consensus against the imposition of life imprisonment without parole on a young defendant who is under the age of eighteen. It would support the view that a sentence imposed on such a defendant would be grossly disproportionate. However, the Court is not persuaded that Article 37(a) demonstrates an international consensus against the imposition of life imprisonment without parole on a young defendant who is over the age of eighteen. Equally, although the applicant has provided a psychiatrist’s report showing him to be suffering from mental health problems, as the Government have observed, that report stops short of diagnosing the applicant with a psychiatric disorder. Therefore, while the Court accepts that the applicant has some mitigating factors, it is not persuaded that the applicant possesses mitigating factors which would indicate a significantly lower level of culpability on his part. The Court accepts that the sentence which the first applicant faces would be unlikely to be passed for a similar offence committed in the United Kingdom, particularly when there is no felony murder rule in England and Wales. The Court also notes that the Supreme Court of Canada, in Martineau, has found that the rule is contrary to the fundamental principles of justice. Therefore, the Court would not exclude that a sentence imposed after conviction under the felony murder rule could, in a sufficiently exceptional case, amount to a grossly disproportionate sentence. This would be particularly so if the sentence was one of mandatory life imprisonment without parole but the facts of the case involved a killing in respect of which there was no real culpability on the part of the defendant. However, as Lord Justice Gross observed, the Court must be concerned with the facts of the case (paragraph 66(i) of the High Court judgment quoted at paragraph 21 above). As he went on to observe, it is fanciful to contemplate the first applicant being at risk of conviction for what was an “accident”; on any realistic view there was no such accident. The Court shares Lord Justice Gross’ view that the fact that the killing took place in the course of an armed robbery is a most serious aggravating factor. This is made yet graver by the fact that, for the gun to have gone off at all, the first applicant would have had to have loaded and cocked the gun before getting out of his car to rob Mr Hayes. Therefore, even allowing for the fact that he may be convicted without the prosecution being required to prove premeditation, the Court does not find that the first applicant’s likely sentence would be grossly disproportionate. The Court would add that this conclusion is not altered by the applicant’s alternative submission that, although he denies being present at the scene, he could conceivably be convicted under the felony murder rule because he lent his car to one of the men who participated in the robbery of Mr Hayes. There is no evidential basis for this submission: at all times the prosecution’s case has been that it was the applicant who had shot Mr Hayes. 140. Second, as the Court has stated, an Article 3 issue will only arise when it can be shown: (i) that the first applicant’s continued incarceration no longer serves any legitimate penological purpose; and (ii) his sentence is irreducible de facto and de iure. The first applicant has not yet been convicted, still less begun serving his sentence (cf. Kafkaris and Léger, cited above, and Iorgov v. Bulgaria (no. 2), no. 36295/02, 2 September 2010). The Court therefore considers that he has not shown that, upon extradition, his incarceration in the United States would not serve any legitimate penological purpose. Indeed, if he is convicted and given a mandatory life sentence, it may well be that, as the Government have submitted, the point at which his continued incarceration would no longer serve any purpose may never arise. It is still less certain that, if that point were ever reached, the Governor of Florida and the Board of Executive Clemency would refuse to avail themselves of their power to commute the applicant’s sentence (see paragraph 52 above and Kafkaris, cited above, § 98). Accordingly, the Court does not find that the first applicant has demonstrated that there would be a real risk of treatment reaching the Article 3 threshold as a result of his sentence if he were extradited to the United States. The Court therefore finds that there would be no violation of Article 3 in his case in the event of his extradition. b. The second applicant 141. The second applicant faces, at most, a discretionary sentence of life imprisonment without parole. Given that this sentence will only be imposed after consideration by the trial judge of all relevant aggravating and mitigating factors, and that it could only be imposed after the applicant’s conviction for a premeditated murder in which one other man was shot in the head and injured, the Court is unable to find that the sentence would be grossly disproportionate. 142. Moreover, for the reasons it has given in respect of the first applicant, the Court considers that the second applicant has not shown that incarceration in the United States would not serve any legitimate penological purpose, still less that, should that moment arrive, the Governor of Maryland would refuse to avail himself of the mechanisms which are available to him to reduce a sentence of life imprisonment without parole (commutation and eventual release on parole: see paragraphs 56–58 above and Kafkaris, cited above, § 98). Therefore, he too has failed to demonstrate that there would be a real risk of treatment reaching the Article 3 threshold as a result of his sentence if he were extradited to the United States. The Court therefore finds that there would be no violation of Article 3 in his case in the event of his extradition. IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 143. The second applicant submitted that, if the Court did not examine his complaint relating to his sentence under Article 3, then, alternatively, that issue could be examined under Article 5. Article 5 guarantees the right to liberty and security. In particular, Articles 5 §§ 1 (a) and 4 provide: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 144. The Court considers that, even assuming that this submission is intended to raise a separate issue from the complaint made under Article 3, it has been determined by its recent admissibility decision in Kafkaris v. Cyprus (no. 2) (dec.), no. 9644/09, 21 June 2011. That application was introduced by Mr Kafkaris following the Grand Chamber’s judgment in his case. He complained inter alia that, under Article 5 § 4, he was entitled to a further review of his detention, arguing that his original conviction by the Limassol Assize Court was not sufficient for the purposes of that provision. He submitted that he had already served the punitive period of his sentence and, relying on Stafford v. the United Kingdom [GC], no. 46295/99, ECHR 2002 ‑ IV, argued that new issues affecting the lawfulness of his detention had arisen. These included the Grand Chamber’s finding of a violation of Article 7, the Attorney-General’s subsequent refusal to recommend a presidential pardon and the fact that, in habeas corpus proceedings, the Supreme Court had failed to consider factors such as his degree of dangerousness and rehabilitation. 145. The Court rejected that complaint as manifestly ill-founded. The Court found that the Assize Court had made it quite plain that the applicant had been sentenced to life imprisonment for the remainder of his life. It was clear, therefore, that the determination of the need for the sentence imposed on the applicant did not depend on any elements that were likely to change in time (unlike in Stafford, cited above, § 87). The “new issues” relied upon by the applicant could not be regarded as elements which rendered the reasons initially warranting detention obsolete or as new factors capable of affecting the lawfulness of his detention. Nor could it be said that the applicant’s sentence was divided into a punitive period and a security period as he claimed. Accordingly, the Court considered that the review of the lawfulness of the applicant’s detention required under Article 5 § 4 had been incorporated in the conviction pronounced by the courts, no further review therefore being required. 146. The Court considers the complaint made in the present cases to be indistinguishable from the complaint made in Kafkaris (no. 2). It is clear from the provisions of Maryland law which are before the Court that any sentence of life imprisonment without parole would be imposed to meet the requirements of punishment and deterrence. Such a sentence would therefore be different from the life sentence considered in Stafford, which the Court found was divided into a tariff period (imposed for the purposes of punishment) and the remainder of the sentence, when continued detention was determined by considerations of risk and dangerousness (paragraphs 79 and 80 of the judgment). Consequently, as in Kafkaris (no. 2), the Court is satisfied that, if convicted and sentenced to life imprisonment without parole, the lawfulness of the second applicant’s detention required under Article 5 § 4 would be incorporated in the sentence imposed by the trial, and no further review would be required by Article 5 § 4. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. RULE 39 OF THE RULES OF COURT 147. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if referral of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 148. It considers that the indications made to the Government under Rule 39 of the Rules of Court (see above § 4) must continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention. | The Court declared inadmissible (manifestly ill-founded) the applicants’ complaints regarding the alleged risk of death penalty. It reiterated that in extradition matters it was appropriate for a presumption of good faith to be applied to a requesting State which had a long history of respect for democracy, human rights and the rule of law, and which had longstanding extradition arrangements with Contracting States. The Court also attached particular importance to prosecutorial assurances concerning the death penalty. In both applicants’ cases, clear and unequivocal assurances had been given by the United States Government and the prosecuting authorities. These were sufficient to remove any risk that either applicant would be sentenced to death if extradited. Further, regarding the risk of life imprisonment without parole, the Court found that in the instant case there would be no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention if one or the other applicant was extradited. |
598 | Case-law of the European Court of Human Rights | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution of the Russian Federation 17. Article 59 of the Constitution reads, in the relevant part, as follows: “1. The defence of the Fatherland shall be the duty and obligation of citizens of the Russian Federation. ... 3. A citizen of the Russian Federation shall have the right to replace military service with alternative civilian service in the case that his convictions or religious beliefs preclude military service, and also in other cases provided by the federal law.” B. Civilian Service Act 18. Alternative civilian service in Russia is regulated by the Civilian Service Act, Law No. 113-FZ of 25 July 2002 ( Федеральный закон от 25.07.2002 N 113-ФЗ « Об альтернативной гражданской службе » ). 19. Section 2 of the Act provides that all citizens are entitled to have compulsory military service replaced by its civilian alternative if their personal convictions or religious beliefs conflict with the duty to perform military service. 20. Section 10 ( 1 ) sets out a process by which citizens are assigned to alternative civilian service: an application is lodged for the replacement of military service by civilian service; the application is examined by a military recruitment commission; a medical examination is carried out; and the individual concerned is dispatched to his or her assigned duty station. 21. Section 11 ( 1 ) indicates, inter alia, that individuals are to lodge such applications at least six months before the beginning of their scheduled draft service. Those who enjoy draft deferments ( such as for the purpose of university studies) are to lodge their applications within ten days of such deferment coming to an end. 22. Under section 11 ( 1 ) ( in fine ), individuals have to substantiate that their beliefs are in conflict with the duty to perform military service. 23. An application for the replacement of military service must indicate the reasons and circumstances prompting an individual to lodge it. The request should be accompanied by a curriculum vitae and a personal reference from that individual ’ s place of work and/or study. Other documents may be attached to the application, and the individual may give the names of persons willing to testify in support of his application ( section 11 ( 2 ) ). 24. Section 12 provides that the military recruitment commission should only examine an application for the replacement of military service in the presence of an applicant. The military recruitment commission should consider : oral statements made by an applicant, together with statements by any individuals who have agreed to testify in support of his application; documents provided; and any additional material obtained by the commission. Decisions on applications are to be adopted by a simple majority. Two-thirds of the members of the military recruitment commission must be present in order to constitute a quorum. An application may be dismissed if, inter alia, the documents and other material submitted do not prove that the applicant ’ s personal convictions or beliefs are in conflict with the obligation to serve in the army. Where an application for the replacement of civilian service by military service is dismissed, the commission must produce a reasoned decision and provide a copy thereof to the applicant. 25. All decisions adopted by the military recruitment commission may be challenged before the courts of general jurisdiction under Chapter 22 of the Code of Administrative Procedure. A disputed decision is automatically suspended pending the adoption of a final judgment by a domestic court ( section 15). C. Compulsory Military Service Act 26. Section 2 5 § 1 of the Compulsory Military Service Act, Law No. 53 ‑ FZ of 28 March 2002 ( Федеральный закон от 28.03.1998 N 53-ФЗ «О воинской обязанности и военной службе » ) provides that as a general rule the military draft takes place twice a year : from 1 April until 15 July and from 1 October until 15 December. 27. A military recruitment commission consists of: the head or a deputy head of a municipal entity, who serves as the president of the military recruitment commission; an officer of a military commissariat, who serves as the deputy president of the military recruitment commission; the secretary of the commission; a medical officer responsible for the medical certification of individuals liable to be called up for military service; a representative of a local internal affairs agency ( орган внутренних дел – a police body); a representative of an “ education governing agency ” ( орган, осуществляющий управление в сфере образования ); and a representative of an employment office ( section 27 ( 1). 28. Under section 27 ( 2 ) of the Act, representatives of other agencies and organisations may sit on a military recruitment commission. D. Code of Administrative Procedure 29. Under Article 186 § 1, a judgment becomes final upon the expiry of the time-limit set for parties to lodge an appeal, if that judgment has not been appealed against. Under Article 298 § 1, parties have one month to lodge an appeal from the moment of adoption of a judgment. 30. Article 186 § 2 provides that where an appeal has been lodged, a judgment enters into force on the day on which it is upheld by the appeal court. In the event that the appeal court quashes or modifies the first ‑ instance judgment and adopts a new decision, the latter enters into force immediately. 31. Chapter 22 of the Code of Administrative Procedure governs proceedings whereby individuals challenge decisions and acts by ( or inaction on the part of ) the public authorities. 32. Under Article 226 § 8, domestic courts examine the lawfulness of a challenged decision ( or act / failure to act). Courts are not bound by arguments raised by claimants and are required to fully examine matters listed in paragraphs 9 and 10 of the same Article. In particular, courts must assess whether the rights and freedoms of a claimant were breached, whether domestic authorities acted ultra vires, and whether the requirements regarding ( i ) the grounds for a contested decision (or act/failure to act) and (ii) the procedure by that decision was adopted were observed. 33. Courts are empowered to rule a decision or act ( or failure to act) challenged before them unlawful, in full or in part. In such a case a court may, where necessary, indicate steps required to be made by the relevant authorities in order to remedy a breach of the domestic law and the rights and freedoms of a claimant (Article 227 § 2). E. Decree of the Government of the Russian Federation No. 663 of 11 November 2006 34. The Decree lays down procedural arrangements for the organisation of biannual military drafts. Section 22 of the Decree provides that at the end of a draft period a military recruitment commission, inter alia, must cancel all those of its military conscription decisions that have subsequently been overturned during that period by a regional military recruitment commission or a court. 35. The Decree is furthermore complemented by Order of the Minister of Defence no. 400 of 2 October 2007, which specified the procedure to be followed in respect of its implementation. Section 7 of annex no. 33 to the Order provides that upon the end of a draft period all unimplemented military conscription decisions are to be revoked by a regional military recruitment commission. F. Ruling of the Constitutional Court no. 447-O of 17 October 2006 36. Examining the compatibility of section 11 of the Civilian Service Act with the Constitution, the Constitutional Court ruled as follows: “ [It ] is not possible to limit by means of procedural rules an individual ’ s freedom of conscience and religion and, accordingly, his right [to be assigned to ] alternative civilian service .... Therefore, section 11 of the Civilian Service Act ... cannot be interpreted as laying down time - limits ... that cannot be renewed for good reasons.” III. RELEVANT INTERNATIONAL DOCUMENT 37. On 9 April 1987 the Committee of Ministers adopted Recommendation No. R (87) 8 to Member States Regarding Conscientious Objection to Compulsory Military Service, which laid down, inter alia, the following basic principles: “A. Basic principle 1. Anyone liable to conscription for military service who, for compelling reasons of conscience, refuses to be involved in the use of arms, shall have the right to be released from the obligation to perform such service, under the conditions set out hereafter. Such persons may be liable to perform alternative service; B. Procedure 2. States may lay down a suitable procedure for the examination of applications for conscientious objector status or accept a declaration by the person concerned giving his reasons; 3. With a view to the effective application of the principles and rules of this recommendation, persons liable to conscription shall be informed in advance of their rights. For this purpose, the state shall provide them with all relevant information directly or allow the private organisations concerned to furnish that information; 4. Applications for conscientious objector status shall be made in ways and within time-limits to be determined having due regard to the requirement that the procedure for the examination of an application should, as a rule, be completed before the individual concerned is actually conscripted into the armed forces; 5. The examination of applications shall include all the necessary guarantees for a fair procedure; 6. An applicant shall have the right to appeal against the decision at first instance; 7. The appeal authority shall be separate from the military administration and composed in such a manner as to ensure its independence.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 38. The applicant complained under Article 9 of the Convention that his application for the replacement of his compulsory military service with its civilian alternative had been arbitrarily dismissed. 39. Article 9 of the Convention reads as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” A. Submissions by the parties 1. The applicant 40. The applicant submitted that the denial of permission for him to perform alternative civilian service had interfered with his right under Article 9 of the Convention. He argued that the interference had not been prescribed by law and had not been necessary in a democratic society because there had been no independent mechanism in Russia for the examination of applications for the replacement of compulsory military service by its civilian alternative and that, in any event, the applicant ’ s application to be assigned to alternative civilian service had not been treated in a manner that had been in full compliance with the domestic procedure. 41. The applicant indicated that the insignificant number of annual applications to be assigned to alterative civil service and the hardships attached to performing that service (such as its lengthier duration and the particular conditions under which such service is performed ) require that all applicants applying for such replacement should be presumed to be sincere in their beliefs. However, the authorities required him to provide evidence to substantiate his convictions. 42. As regards the existence of an effective mechanism for the examination of applications for the replacement of the compulsory military service by civilian service, the applicant submitted that military recruitment commissions in Russia were not independent of the military authorities, given certain aspects of their composition and functioning. 43. In particular, the applicant stressed that the standard composition of a recruitment commission comprised exclusively government officials. Typically they did not contain either any independent experts acting in a personal capacity or members of the public. 44. Furthermore, the applicant indicated that recruitment commissions did not have their own funding and relied heavily on the administrative support of military commissariats. All decision made during recruitment commissions ’ sessions were de facto made by the heads of military commissariats. 45. Referring to the circumstances of his case, the applicant submitted that, contrary to the requirements of the domestic law, he had not been given the full reasoning for the decision of the recruitment commission. That had rendered the subsequent judicial review (see paragraphs 14-16 above) ineffective. 46. The applicant also disagreed with the statistical information provided by the respondent Government. According to the information obtained by the applicant ’ s representative from the St Petersburg Military Commissariat and the St Petersburg City administration, out of 560 applications for alternative civilian service lodged in St Petersburg from 2014 until 2017, only 325 were granted. That ran counter to the information provided by the Government in their observations (see below). 47. He also observed that some of the examples of the domestic courts ’ rulings submitted by the Government (see below) were not relevant to the subject matter of the present case. At the same time, the applicant cited 123 cases considered between 2014 and 2017 where domestic courts had upheld decisions of the military recruitment commissions dismissing applications to be assigned to civilian service. 48. Lastly, the applicant claimed that the judicial review process in Russia was overall ineffective, as courts were not empowered to allow applications for the replacement of military service with civilian service and were forced to return them to the commissions for reconsideration. 2. The Government 49. The Government submitted that the Russian law guaranteed the right of an individual to ask for the replacement of compulsory military service with its civilian alternative. 50. They furthermore stated that there was an effective and independent domestic mechanism in Russia for the examination of replacement applications. Referring to the provisions of the law (see paragraphs 17 ‑ 28 above) they described the composition of military recruitment commissions, and the procedure for the examination of replacement applications. 51. The Government furthermore indicated that the military recruitment commission in the applicant ’ s case had been created by a decree issued by the Governor of St Petersburg. The commission had consisted of seven members. Three of them were representatives of the Ministry of Defence. The remaining four members were independent of the military authorities. 52. Both at the meeting of the recruitment commission on 25 November 2014 and during the court proceedings the applicant had been provided with an opportunity to present his explanations, to submit evidence and to question witnesses in support of his claims. The Government noted that the applicant had failed to secure presence of a witness in his support during the first instance hearing. They further stated that the replacement application had been dismissed, in full compliance with the domestic law, because he had failed to prove that he had held beliefs preventing him from serving in the army. The proceedings had not been tainted by arbitrariness or bias. 53. The Government also provided statistical data on alternative civil service in Russia. According to information from the Ministry of Defence, from 2014 until 2017 individuals had made 4, 110 applications to be assigned to alternative civilian service. Almost 98 % of them had been allowed. 54. As regards judicial review of refusals to replace military service with civilian service, the Government indicated that from 2014 until 2017 courts had allowed forty-four appeals against refusals by military recruitment commissions to allow the replacement of military service with its civilian alternative. 3. Submissions by the third - party intervener 55. The Movement of Conscientious Objectors, a non-governmental organisation working with conscientious objectors in Russia, acting as a third party, argued that recruitment commissions were not independent of the military authorities. Commissions relied on administrative and financial support from commissariats. In practice, the head of each military commissariat made all the decisions and the remaining members simply concurred with him. Procedural rules were quite frequently violated during the commissions ’ sessions. 56. The third-party intervener provided statistics on applications to be assigned to alternative civil service lodged with its assistance from 2015 until 2017. Out of 242 applications only 115 had been allowed. 57. The Movement of Conscientious Objectors also referred to fifty-six domestic court decisions delivered in 2016. Only four of those decisions had allowed appeals against decisions issued by military recruitment commissions. B. Assessment by the Court 1. Admissibility 58. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) The Court ’ s approach in the present case 59. The Court reiterates that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person ’ s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 of the Convention. Whether and to what extent objection to military service falls within the ambit of that provision must be assessed in the light of the particular circumstances of the case (see Bayatyan v. Armenia [GC], no. 23459/03, §110, ECHR 2011 ). 60. The Court furthermore notes that States are bound by primarily negative undertaking to abstain from any interference with the rights guaranteed by Article 9 of the Convention. The Court finds that interference will take place where an individual ’ s request, motivated by religious beliefs or convictions, to be drafted for alternative civilian service is dismissed by national authorities. Such interference will be contrary to Article 9 of the Convention unless it is “ prescribed by law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society” (see, mutatis mutandis, Adyan and Others v. Armenia, no. 75604/11, § 60, 12 October 2017). 61. In this regard, the Court also reiterates that it has previously found that denying an individual an opportunity to perform alternative civilian service would not be necessary in a democratic society within the meaning of Article 9 of the Convention, where, inter alia, this individual had provided solid and convincing reasons justifying his exemption from military service (see Bayatyan, cited above, §§ 125-28) 62. At the same time, the Court is mindful that were an individual requests a special exemption bestowed upon him due to his religious beliefs or convictions, it is not oppressive or in fundamental conflict with freedom of conscience to require some level of substantiation of genuine belief and, if that substantiation is not forthcoming, to reach a negative conclusion ( see Kosteski v. the former Yugoslav Republic of Macedonia, no. 55170/00, § 39, 13 April 2006; Enver Aydemir v. Turkey, no. 26012/11, § 81, 7 June 2016; Papavasilakis v. Greece, no. 66899/14, § 54, 15 September 2016 ). 63. Accordingly, States are allowed to establish procedures to assess the seriousness of the individual ’ s beliefs and to thwart any attempt to abuse the possibility of an exemption on the part of individuals who are in a position to perform their military service (see Papavasilakis, cited above, § 54). At the same time, there is a corresponding positive obligation on domestic authorities to ensure that procedures for establishing whether an applicant is entitled to conscientious objector status are effective and accessible (see Papavasilakis, cited above, §§ 50-53; Savda v. Turkey, no. 42730/05, § 99, 12 June 2012). One of the fundamental conditions for such procedure to be considered effective is the independence of the individuals examining requests for the replacement of military service (see Papavasilakis, cited above, § 60). 64. In the light of the above observations, in order to establish whether the requirements of Article 9 of the Convention were met in the present case the Court will examine, firstly, whether domestic authorities managed to establish an appropriate framework in Russia and, secondly, whether the respondent State complied with their negative obligations in the applicant ’ s case. (b) Positive obligations of the respondent State ( i ) Proceedings before a military commission 65. The Court notes that the Constitution of the Russian Federation expressly provides the general right of conscientious objectors to have their obligatory military service replaced with its civilian alternative (see paragraph 17 above ). 66. The replacement of military service is not unconditional. Applications are subject to the approval of a recruitment commission, in accordance with the provisions of the Civilian Service Act (see paragraphs 18 - 25 above ). In this regard the Court reiterates that an assessment of the seriousness of an individual ’ s convictions cannot in itself be regarded as being contrary to Article 9 of the Convention, given the necessity to identify conscripts who are simply pretending to be conscientious objectors (see Papavasilakis, cited above, § 54). 67. The examination of a replacement application is undertaken by a recruitment commission in the presence of the claimant, who is able to present evidence and witness testimony without any restrictions. A commission is also able to collect on its own motion any information that it deems necessary. 68. The Court furthermore reiterates that one of the fundamental conditions for an investigation to be considered effective is the independence of the individuals conducting it (see Papavasilakis, cited above, § 6 0 ). 69. The Court observes that under the Compulsory Military Service Act (see paragraph 27 above ) a military recruitment commission is composed of at least seven members. Three of them are representatives of the Ministry of Defence. The remaining four members, including the president of the military commission, are officials of public bodies that are structurally independent of the military authorities. 70. It follows that Russian military recruitment commissions are comprised of government officials ( either military or civil ). They do not comprise any civil society experts acting in a personal capacity or members of the public. The Court is mindful that the Compulsory Military Service Act provides for the possibility to have representatives of other agencies and organisations in the composition of recruitment commissions. However, the parties did not provide examples of such cases. 71. Assessing the procedure further, the Court notes that, under the Civilian Service Act, a commission can deliver decisions if no less than two-thirds of its members are present. That could result in situations where the majority of its members are military officials. 72. Therefore, in practice, the composition of a recruitment commission may vary not only from one region to another – it can also change between sessions. While such variability in the composition of the body that is responsible for deciding on replacement applications may be unfortunate, the question for the Court is whether the requirement that the military recruitment commission be independent has been complied with in the specific circumstances of the present case. 73. In this connection, the Court also does not lose sight of the argument put forward both by the applicant and the third- party intervener that recruitment commissions relied heavily on administrative support from military commissariats and it was the heads of commissariats who de facto made all decisions during sessions of recruitment commissions. 74. While it appears that military commissariats indeed provide premises for commissions ’ sessions, nothing suggests that individual members obtain any payments or incentives from the military authorities. They remain employed by their own State agencies and are not subject to any pressure or receive any instructions from the Ministry of Defence. Accordingly, the Court finds that the provision of ordinary administrative support cannot in itself be seen as affecting the independence of a commission ’ s members. 75. Furthermore, the Court considers that the allegation (see the submissions of the applicant and the third party in paragraphs 4 4 and 5 5 above) that members of recruitment commissions did not have true voting powers and that all decisions were de facto made by the heads of the military commissariats is speculative and cannot be regarded as valid in the absence of any credible evidence to support it. ( ii ) Proceedings before the domestic courts 76. The Court observes that all decisions adopted by a military recruitment commission are amenable to an appeal before the national courts of general jurisdiction (see paragraph 25 above ). Courts are vested with broad powers of review with regard to military commissions ’ decisions. Judicial scrutiny covers all matters of fact and law as well as observance of the rights and freedoms of a claimant. Courts are empowered to declare a contested decision unlawful, as well as to order measures to remedy breaches of the law and individual rights and freedoms (see paragraphs 31 - 33 above). 77. The Court furthermore notes that commissions ’ decisions are automatically suspended pending the adoption of a final judgment by a domestic court. This is an important safeguard preventing individuals from being conscripted into military service while court proceedings are still ongoing. 78. The Court is mindful that under the Russian Code of Administrative Procedure a judgment becomes final on the day that it is upheld by an appeal court (see paragraphs 29 and 30 ). Consequently, a two-tier review in cassation proceedings before the regional courts and the Supreme Court has no suspensive effect. However, this would not automatically render cassation proceedings ineffective. Moreover, the applicant never argued that cassation appeal had not in practice been accessible to him or had otherwise been ineffective owing to the lack of any suspensive effect. ( iii ) Statistical information 79. The Court observes that both the applicant and the respondent Government relied on statistical data. However, there was a significant discrepancy between the respective information submitted. 80. According to the applicant, from 2014 until 2017 approximately 60 % of all applications for the replacement of military service lodged in St Petersburg were granted (325 applications out of 560). By contrast, the Government indicated an almost 98 % approval rate regarding such applications for the entire country in the same period, which would amount to a total of approximately eighty-eight dismissals out of 4, 110 replacement applications lodged country-wide. Information provided by the third - party intervener indicated that approximately 50 % of all applications lodged with their assistance were approved in the period in question. 81. The Court is not in a position to determine whether the reasons for such a significant discrepancy were due to the differences in statistical technology or to calculation errors. Nonetheless, all three approaches confirm the absence of institutional bias against individuals seeking the replacement of military service with its civilian alternative. The Court will, therefore, proceed with that in mind. ( iv ) Conclusion 82. To sum up, the Court considers that the existing mechanism in Russia for the examination of applications for the replacement of compulsory military service with its alternative civilian version provides wide scope for an examination of individual circumstances and encompasses sufficient procedural guarantees for a fair procedure as required by international standards (see paragraph 37 ) and the Court ’ s case law (see paragraph 6 3 ). While in practice, in certain circumstances, the composition of a commission may raise doubts as to its independence, the general rule, as can be seen from the regulatory framework and the examples provided by the parties, is that a recruitment commission, given the structural detachment of the majority of its members from the military authorities, satisfies the prima facie requirement of independence (see, a contrario, Papavasilakis, cited above, §§ 61-64). 83. Furthermore, any procedural defects occurring at the commission level could be subsequently remedied during the judicial proceedings, given the scope of the judicial review process and the courts ’ wide powers. 84. Accordingly, the Court concludes that the Russian authorities complied with their positive obligations under Article 9 of the Convention to establish an effective and accessible procedure for determining whether an applicant is entitled to conscientious objector status. (c) Negative obligations of the respondent State 85. The Court reiterates that interference will take place where an individual ’ s request for the replacement of the compulsory military service by civilian service, motivated by serious religious beliefs or convictions, is dismissed by national authorities (see paragraph 6 0 above). 86. The Court furthermore notes that States are generally allowed to assess the seriousness of the individual ’ s beliefs while examining whether he is entitled to conscientious objector status (see paragraphs 62 and 63 above). 87. The Court must retain its supervisory function. It is not its task to evaluate the meaning of an applicant ’ s statements before domestic authorities and the way in which they were interpreted, this being first and foremost the role of the national authorities (see Papavasilakis, cited above, § 58 in fine ). Accordingly, save for the instances of arbitrariness or manifest unreasonableness, the Court will rely on the conclusions reached by an effective domestic mechanism after examination of an individual request. 88. Turning to the circumstances of the present case, the Court observes that the military recruitment commission in the applicant ’ s case had a standard composition and consisted of seven members. Four of them, including the president of the commission, were structurally independent of the Ministry of Defence (see paragraph 10 above). 89. Consequently, the Court is satisfied that the composition of the commission afforded the requisite guarantees of independence to the applicant ( compare Papavasilakis, cited above, § 61). 90. The Court furthermore notes that the applicant ’ s request for the replacement of military service was dismissed by the commission as not sufficiently persuasive. The applicant challenged the dismissal in courts. He did not complain about scarcity of reasons before the national authorities. 91. The domestic courts did not limit the scope of the review to the decision of the commission. The applicant ’ s replacement application was examined anew. The applicant was afforded an opportunity to put forward arguments and to adduce evidence of his beliefs ( including by introducing witness testimony ). However, he did not bring any new evidence or witnesses before the domestic courts. He adduced his curriculum vitae and a letter of recommendation (see paragraphs 12 and 15). 92. Moreover, neither party argued that the judicial proceedings had been tainted by a violation of fair-trial guarantees; nor was there any indication that the courts held any presumptions of facts or of law against the applicant. 93. The Court reiterates that it is not its task to substitute its own assessment of factual evidence for that of the national courts. The Court sees no reason to doubt the domestic authorities ’ assessment of the seriousness of the applicant ’ s convictions. 94. The Court therefore accepts that the applicant has failed to substantiate the existence of a serious and insurmountable conflict between the obligation to serve in the army and his convictions. 95. Accordingly, there has been no violation of Article 9 of the Convention. | The Court held that there had been no violation of Article 9 of the Convention in the applicant’s case. In particular, it could see no reason to doubt the authorities’ assessment of the seriousness of the applicant’s convictions. Indeed, he had not provided sufficient evidence, only submitting a curriculum vitae and a letter of recommendation from his employer, to prove that his opposition to serving in the army was motivated by a serious and insurmountable conflict with his convictions. Overall, the Court found that the framework in Russia for deciding on cases concerning opposition to military service, involving a military commission and the possibility for judicial review, was appropriate. The military commissions satisfied the prima facie requirement of independence, while the courts had wide powers to then review a case if there were any procedural defects at the commission level. |
750 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW 32. The basic regulations on the protection of nature are laid down in the 1964 Act. 33. According to section 1 of the Act, everyone must show respect and circumspection in his or her dealings with nature. In addition, all necessary measures have to be taken to limit or counteract any damage to nature which is bound to result from any works undertaken or otherwise. 34. Section 3 provides that, in decisions on questions relating to nature conservation, other public and private interests must be duly considered. 35. Section 18 of the Act prohibits, inter alia, extraction of gravel for purposes other than the domestic needs of the landowner without a permit from the County Administrative Board. The section also specifies that: "The County Administrative Board may require a party applying for an exploitation permit to submit, on pain of the application being rejected, material showing the need for the extraction and a sufficiently detailed plan for the activities. The permit shall be made subject to such conditions as are necessary to limit or counteract the harmful effects of the enterprise on the natural environment. In the absence of special reasons to the contrary, a permit shall be valid only if sufficient financial security is lodged to ensure that the conditions prescribed are actually fulfilled. If the security given proves to be inadequate, the County Administrative Board may order that the permit shall not become effective until additional security has been lodged. If a prescribed measure is to be taken by someone other than the landowner, the latter must allow it to be carried out. If ten years have elapsed since an exploitation permit acquired legal force, the County Administrative Board may revoke the permit completely or in part or may make its renewal subject to revised conditions. If it becomes apparent that the conditions laid down do not sufficiently limit or counteract the damaging effects that the activities may have on the natural environment, the County Administrative Board may, before the expiry of the stated period, make the permit subject to such additional conditions as may be necessary." The last sub-paragraph was added on 1 July 1973. Previously an exploitation permit could not be revoked without compensation being paid to the landowner if the prescribed conditions had been complied with. According to the transitional provisions, the ten-year period was, as regards permits valid on 1 July 1973, to be calculated as from that date. The amendment also repealed certain provisions whereby a landowner could be granted compensation if he was refused a permit. 36. Section 40 (2) of the Act provides that an appeal lies to the Government against a decision taken by the County Administrative Board. At the time of the final decision regarding the revocation question ( 12 December 1985, see paragraph 24 above), the Government ’ s decisions were not subject to any judicial review. However, since the entry into force, on 1 June 1988, of the Act on Judicial Review of Certain Administrative Decisions, the lawfulness of some decisions by the Government may be challenged before the Supreme Administrative Court. PROCEEDINGS BEFORE THE COMMISSION 37. Mr and Mrs Fredin applied to the Commission on 5 March 1986. They alleged, firstly, that the revocation of the exploitation permit amounted to a deprivation of property contrary to Article 1 of Protocol No. 1 (P1-1); secondly, that they had not had access to a court to challenge certain of the Government ’ s decisions, as required by Article 6 (art. 6) of the Convention; and, thirdly, that the County Administrative Board had, in contravention of Article 14 of the Convention taken together with the above-mentioned Article 1 (art. 14+P1-1), discriminated against them because they were the sole independent operators in the area. 38. By decision of 14 December 1987, the Commission declared the application (no. 12033/86) admissible. In its report adopted on 6 November 1989 (Article 31 of the Convention) (art. 31), the Commission expressed the unanimous opinion that there had been a violation of Article 6 § 1 (art. 6-1), but not of Article 1 of Protocol No. 1 (P1-1) taken either alone or in conjunction with Article 14 (art. 14+P1-1) of the Convention. The full text of the Commission ’ s opinion is reproduced as an annex to this judgment [*]. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1) 39. According to the applicants the revocation of their permit to exploit gravel on their property violated Article 1 of Protocol No. 1 (P1-1), which reads: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." Neither the Government nor the Commission agreed with this claim. 40. The Court finds - and this point was not contested before it - that the revocation of the permit interfered with the applicants ’ right to the peaceful enjoyment of their possessions, including the economic interests connected with the exploitation of the gravel pit (see, mutatis mutandis, the Tre Traktörer AB judgment of 7 July 1989, Series A no. 159, p. 21, § 53). A. The Article 1 (P1-1) rule applicable to the case 41. Article 1 (P1-1) guarantees in substance the right of property. It comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose. However, the rules are not "distinct" in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property. They must therefore be construed in the light of the general principle laid down in the first rule (see, inter alia, the Mellacher and Others judgment of 19 December 1989, Series A no. 169, pp. 24-25, § 42). 42. There was no formal expropriation of the applicants ’ property. However, for the purposes of Article 1 of Protocol No. 1 (P1-1) the concept of "deprivation" covers not only formal expropriation but also measures which amount to a de facto expropriation (see, inter alia, the Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 24, § 63). The applicants contended that they had been the victims of such a de facto deprivation of property, whereas the Government and the Commission considered the revocation of the permit to be a measure for the control of use of property. 43. The Court notes that the impugned measure was basically designed to control the applicants ’ use of their possessions and left unaffected their powers to take formal decisions, within the normal boundaries of the law, concerning the fate of their property Ström 1:3 and of their company, Kagghamra Grus AB. Indeed, this was common ground. It remains however to be ascertained whether the consequences of the revocation of the permit were so serious as to amount to a de facto deprivation of property. 44. The applicants have stressed that the revocation, taken together with other existing regulatory measures, left no meaningful alternative use for Ström 1:3. They have also maintained that the revocation deprived their property of all its value. 45. As to the first point, the Court shares the opinion of the Delegate of the Commission that the applicants ’ possibilities of using their possessions cannot be assessed by looking at Ström 1:3 in isolation. The material before the Court indicates that this parcel was created by the applicants from parts of their existing properties for the sole purpose of serving as a base for the gravel pit business; in fact, its separation from the other parcels seems to have been simply a formality. In order to take into account the realities of the situation, the effects of the revocation thus have to be ascertained in the light also of the situation obtaining on the applicants ’ surrounding properties. Nothing indicates, however, that the revocation directly affected these other properties (see paragraphs 8 and 9 above). Viewing the question from this perspective, the Court does not find it established that the revocation took away all meaningful use of the properties in question. 46. With regard to the second argument, the Court first notes that the applicants are still the owners of the gravel resources on Ström 1:3. It recognises nevertheless that the revocation of the 1963 permit did have serious adverse effects, as compared with the situation which would have obtained if they had been able to continue to exploit gravel in accordance with that permit, on the income derivable from the possessions involved in this case and also on their value. One has, however, to bear in mind that, over the years, the exploitation of gravel had become more and more regulated and, in fact, restricted (see paragraphs 10 and 32-35 above). Thus, the amendment introduced on 1 July 1973 to the 1964 Act (see paragraph 35 above) empowered the authorities to revoke, without compensation, old permits, such as the applicants ’, after ten years had passed, that is after 1 July 1983. As a consequence, the applicants ’ possibilities of continuing their gravel exploitation business after this date became uncertain. 47. In the light of the above considerations, the revocation of the applicants ’ permit to exploit gravel cannot be regarded as amounting to a deprivation of possessions within the meaning of the first paragraph of Article 1 of Protocol No. 1 (P1-1-1). It must be considered as a control of use of property falling within the scope of the second paragraph of the Article (P1-1-2). B. Compliance with the conditions laid down in the second paragraph of Article 1 (P1-1-2) 1. Lawfulness and purpose of the interference 48. The applicants did not contest the legitimacy of the aim of the 1964 Act, that is the protection of nature. The Court recognises for its part that in today ’ s society the protection of the environment is an increasingly important consideration. 49. The applicants maintained, however, that the legal provisions underlying the impugned measure were not sufficiently foreseeable as to their effects and certain for the purposes of the Convention. In addition, they alleged, with reference to the AGOSI judgment (24 October 1986, Series A no. 108), that, as a result of the absence of any judicial review, the Swedish system did not contain adequate safeguards against abuse to meet the procedural requirements embodied in Article 1 of Protocol No. 1 (P1-1) and that, in their case, the decision had in fact been unlawful and arbitrary. 50. The Court does not share these views. As regards first of all the application of the law in Mr and Mrs Fredin ’ s case, the Court ’ s power to review compliance with domestic law is limited (see, inter alia, the Håkansson and Sturesson judgment of 21 February 1990, Series A no. 171, p. 16, § 47). The evidence available does not show that the revocation decision was contrary to Swedish law: no convincing argument has been made to support the applicants ’ view that the 10-year period prescribed in the 1973 amendment to section 18 of the 1964 Act should have been calculated by the Board from the day when the permit was transferred to them instead of from 1 July 1973, the date of entry into force of the amendment (see paragraph 35 above); nor has it been shown that the authorities failed to comply with their duty under section 3 of the 1964 Act to take due account also of private and public interests other than nature conservation. Furthermore, there is no indication that the revocation decision sought to achieve some aim other than the one underlying the 1964 Act. With respect to foreseeability, the Court finds that the relevant provisions of the 1964 Act (see paragraphs 32-35 above) did indicate the scope and manner of exercise of the discretion conferred on the authorities with sufficient precision, having regard to the subject matter, to meet the requirements of the Convention (see, mutatis mutandis and inter alia, the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 47, § 110, and the Eriksson judgment of 22 June 1989, Series A no. 156, p. 24, § 59). The Convention, however, also requires, as the applicants have pointed out, that there be a measure of legal protection in domestic law against interferences by public authorities with the rights safeguarded by the Convention (see, mutatis mutandis, the Malone judgment of 2 August 1984, Series A no. 82, p. 32, § 67). Nevertheless, the Court cannot find that the absence of judicial review amounts, in itself, to a violation of Article 1 of Protocol No.1 (P1-1). This matter falls instead to be considered under Article 6 (art. 6) of the Convention (see paragraphs 62-63 below and, inter alia, the Allan Jacobsson judgment of 25 October 1989, Series A no. 163, pp. 17-18, § 58). 2. Proportionality of the interference 51. It is well-established case-law that the second paragraph of Article 1 of Protocol No. 1 (P1-1-2) must be construed in the light of the principle laid down in the first sentence of the Article (see, as the most recent authority, the above-mentioned Mellacher and Others judgment, Series A no. 169, p. 27, § 48). Consequently, an interference must achieve a "fair balance" between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights (ibid.). The search for this balance is reflected in the structure of Article 1 (P1-1) as a whole, and therefore also in the second paragraph thereof: there must be a reasonable relationship of proportionality between the means employed and the aim pursued (ibid.). In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (see the above-mentioned AGOSI judgment, Series A no. 108, p. 18, § 52). 52. According to the applicants, the circumstances obtaining at the time they made their investments gave them legitimate reason to believe that they would be able to continue the exploitation of the gravel pit for a long time. They claimed that the revocation at short notice of their right to do so did not strike a fair balance between the individual and general interests involved. The Government, with whom the Commission agreed, maintained that the revocation decision respected this fair balance. 53. The Court notes that the applicants suffered substantial losses having regard to the potential of the gravel pit if it had been exploited in accordance with the 1963 permit (see paragraph 30 above). However, as has been indicated above (see paragraph 46), the Court does not find that reliance can be placed solely on that potential when the effects of the revocation in 1984 come to be assessed; account has to be taken also of the restrictions lawfully imposed on the use of the pit. 54. The applicants initiated their investments seven years after the entry into force of the 1973 amendment to section 18 of the 1964 Act which clearly provided for the potential revocation of existing permits after the expiry of the 10-year period that started to run on 1 July 1973 (see paragraphs 35 and 50 above). They must therefore reasonably have been aware of the possibility that they might lose their permit after 1 July 1983. In addition, it is clear that the authorities did not give them any assurances that they would be allowed to continue to extract gravel after this date. Thus, the decision to grant them a permit to build a quay contained an express statement to the effect that that decision did not imply that "any position [had] been taken as to the possibility of a future reconsideration of the gravel exploitation activities on the property" (see paragraph 16 above). Accordingly, when embarking on their investments, the applicants could have relied only on the authorities ’ obligation, when taking decisions relating to nature conservation, to take due account of their interests, as prescribed in section 3 of the 1964 Act (see paragraph 34 above). This obligation cannot, at the time the applicants made their investments, reasonably have founded any legitimate expectations on their part of being able to continue exploitation for a long period of time. The Court observes in addition that the applicants were granted a three-year closing-down period and that the authorities showed a certain flexibility as this period was subsequently extended by eleven months at the applicants ’ request (see paragraphs 21, 24 and 26 above). 55. Having regard to the foregoing and to the legitimate aim pursued by the 1964 Act (see paragraph 48 above), the Court finds that it cannot be said that the revocation decision complained of by the applicants was inappropriate or disproportionate. 3. Conclusion 56. In conclusion, no violation of Article 1 of Protocol No. 1 (P1-1) has been established. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1) 57. The applicants also maintained that they were victims of discrimination in the enjoyment of their rights under Article 1 of Protocol No. 1 (P1-1). They invoked Article 14 (art. 14) of the Convention, which provides: "The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." They claimed that theirs was the only case in Sweden in which the authorities had stopped an ongoing gravel exploitation business and that they had been singled out for special treatment by the County Administrative Board as they were the only independent contractors in the region. 58. In their memorial to the Court, the applicants first recalled the Government ’ s submission before the Commission: whilst admitting that to their knowledge no other ongoing business had been closed by the authorities under the 1973 amendment to the 1964 Act, they had contended that the applicants ’ case was exceptional in that a considerable time had elapsed between the granting of the permit and the first exploitation of gravel. The applicants pointed out that the authorities had, however, been well aware of the special reasons for the delay and that, moreover, such a long lapse of time was by no means uncommon; in the near vicinity alone, there were at least two pits quite similar in this respect, but this had not led the authorities to interfere with the activities there. 59. The Government agreed with the Commission that, as there was nothing to show that the applicants were in a position similar to that of those companies whose permits were not revoked, no issue of discrimination could arise. 60. The Court recalls that Article 14 (art. 14) affords protection against discrimination, that is treating differently, without an objective and reasonable justification, persons in "relevantly" similar situations. For a claim of violation of this Article to succeed, it has therefore to be established, inter alia, that the situation of the alleged victim can be considered similar to that of persons who have been better treated. 61. Before the Commission the applicants endeavoured to demonstrate that this condition was satisfied by submitting a report by Mr Karlsson (see paragraph 31 above). After assessing this evidence, the Commission held, however, that there was nothing to show that the applicants were in a similar situation to those companies whose permits were not revoked (paragraph 77 of its report). In their submissions to the Court the applicants did not try to refute the Commission ’ s assessment, nor did they adduce other evidence. Their main argument was that, since theirs was the only ongoing business to have been stopped (see paragraph 58 above), it was for the Government to explain in what respect their case was dissimilar to those of the other enterprises which had been allowed to continue their activities or to give a plausible reason for their exceptional treatment. The Court cannot subscribe to this argument. It is true that, in the absence of further information from the Government with regard to the implementation of the 1964 Act and, in particular, the 1973 amendment thereto (see paragraph 35 above), the Court has to presume that the applicants ’ pit is the only one to have been closed by virtue of that amendment. However, this is not sufficient to support a finding that the applicants ’ situation can be considered similar to that of other ongoing businesses which have not been closed. The Court perceives no reason why it should assess the evidence otherwise than did the Commission and accordingly holds that no issue of discrimination contrary to Article 14 (art. 14) arises. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION 62. The applicants also alleged that the absence of any form of judicial review of the decisions to revoke their exploitation permit and to increase the amount of the security to be lodged constituted a violation of Article 6 § 1 (art. 6-1), the relevant part of which provides: "In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing by [a] ... tribunal ..." 63. The Court finds that the applicants ’ right to develop their property in accordance with the applicable laws and regulations was "civil" within the meaning of Article 6 § 1 (art. 6-1) (see, as the most recent authority, the Skärby judgment of 28 June 1990, Series A no. 180-B, pp. 37-38, § 29). It is furthermore clear that there was a "genuine and serious" dispute (contestation) between them and the authorities regarding the lawfulness of the impugned decisions and that the outcome of this dispute was directly decisive for that right (ibid.). Article 6 (art. 6) was accordingly applicable: in fact this point was not in dispute before the Court. As the dispute in question could, at the relevant time (see paragraph 29 above), be determined only by the Government as the final instance, there has been a violation of Article 6 § 1 (art. 6-1) (see, inter alia, the above-mentioned Håkansson and Sturesson judgment, Series A no. 171, p. 20, § 63). IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 64. Article 50 (art. 50) of the Convention reads: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." The applicants sought compensation for damage and reimbursement of their costs and expenses. A. Pecuniary damage 65. The applicants claimed 28,000,000 Swedish kronor to cover the economic losses which, according to them, resulted from the revocation of the permit (see paragraph 30 above). The Court agrees with the Commission and the Government that no causal link has been established between the violation of Article 6 § 1 (art. 6-1) of the Convention found in this judgment and any of the alleged prejudice. The revocation of the permit caused the applicants considerable losses, but the Court cannot speculate as to what result they would have achieved had they been able to bring their case before a court (see, inter alia, the above-mentioned Håkansson and Sturesson judgment, Series A no. 171, p. 22, § 72). No award can therefore be made under this head. B. Non-pecuniary damage 66. The applicants also sought 50,000 Swedish kronor as compensation for non-pecuniary damage. The Government and the Commission left the question to the Court, but observed that any award ought not to exceed 10,000 kronor. The Court finds that, as a result of the absence of an adequate court remedy, the applicants have suffered some non-pecuniary damage which would not be redressed merely by a finding of violation. Deciding on an equitable basis, it awards them 10,000 kronor as just satisfaction under this head. C. Costs and expenses 67. The applicants sought 343,926 kronor in respect of costs and expenses. Of this amount, 267,338 kronor were referable to the proceedings in Strasbourg; 180,380 kronor represented Mr Axelsson ’ s fees, 36,383 kronor travel expenses for him and the applicants and 50,575 kronor Mr Axelsson ’ s expenses for various expert opinions. The remaining 76,588 kronor related to the applicants ’ costs in the domestic proceedings. The greater part of Mr Axelsson ’ s work before the Convention institutions was undoubtedly devoted to questions which were not related to the violation found; the same holds true for most of the expert opinions requested. Considering this and other relevant circumstances, and making an assessment on an equitable basis as is required by Article 50 (art. 50) of the Convention, the Court awards the applicants 75,000 kronor under this head. | In this case the Court recognised that in today’s society the protection of the environment was an increasingly important consideration. In the circumstances of the case, and having regard to the legitimate aim pursued by the 1964 Act, i.e. the protection of the environment, it found that it could not be said that the revocation decision complained of by the applicants had been inappropriate or disproportionate and it therefore held that there had been no violation of Article 1 of Protocol No. 1 to the Convention. It was true that the applicants had suffered substantial losses having regard to the potential of the gravel pit if it had been exploited in accordance with the 1963 permit. The Court however noted that, when embarking on their investments, they could have relied only on the authorities’ obligation, when taking decisions relating to nature conservation, to take due account of their interests, as prescribed in the 1964 Act. This obligation could not, at the time they had made their investments, reasonably have founded any legitimate expectations on their part of being able to continue exploitation for a long period of time. In addition, the applicants had been granted a three-year closing-down period, and the authorities had shown a certain flexibility as this period had subsequently been extended by eleven months at the applicants’ request. |
1,084 | Dismissal | II. RELEVANT INTERNATIONAL LAW AND DOMESTIC LAW AND PRACTICE A. State immunity from jurisdiction 1. International law 18. State immunity from jurisdiction is governed by customary international law, the codification of which is enshrined in the United Nations Convention on Jurisdictional Immunities of States and their Property of 2 December 2004 (“the 2004 Convention”). The principle is based on the distinction between acts of sovereignty or authority ( acte jure imperii ) and acts of commerce or administration ( acte jure gestionis ). 19. Article 11 (Contracts of employment) of the convention reads as follows: “1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State. 2. Paragraph 1 does not apply if: ( a ) the employee has been recruited to perform particular functions in the exercise of governmental authority; ( b ) the employee is: ( i ) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961; (ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963; (iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or (iv) any other person enjoying diplomatic immunity; ( c ) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual; ( d ) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State; ( e ) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or ( f ) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.” 20. In the Draft Articles on Jurisdictional Immunities of States and their Property, adopted by the International Law Commission at its forty-third session in 1991, and submitted to the General Assembly at that session, Article 11 read as follows: “1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State. 2. Paragraph 1 does not apply if: ( a ) the employee has been recruited to perform functions closely related to the exercise of governmental authority; (b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual; (c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded; (d) the employee is a national of the employer State at the time when the proceeding is instituted; or (e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.” 21. In the commentary on that Article the Commission indicated as follows: “Paragraph 2 (b) is designed to confirm the existing practice of States in support of the rule of immunity in the exercise of the discretionary power of appointment or non-appointment by the State of an individual to any official post or employment position. ... So also are the acts of ‘ dismissal ’ or ‘ removal ’ of a government employee by the State, which normally take place after the conclusion of an inquiry or investigation as part of supervisory or disciplinary jurisdiction exercised by the employer State. This subparagraph also covers cases where the employee seeks the renewal of his employment or reinstatement after untimely termination of his engagement. The rule of immunity applies to proceedings for recruitment, renewal of employment and reinstatement of an individual only. It is without prejudice to the possible recourse which may still be available in the State of the forum for compensation or damages for ‘ wrongful dismissal ’ or for breaches of obligation to recruit or to renew employment.” 22. The 2004 Convention on Jurisdictional Immunities of States and their Property was signed by France on 17 January 2007. The Bill authorising its ratification is currently being examined by the National Assembly, the Senate having approved the following text at First Reading on 22 December 2010: “Single Article The ratification of the United Nations Convention on Jurisdictional Immunities of States and their Property, adopted on 2 December 2004 and signed by France on 17 January 2007 is hereby authorised.” 23. For a more comprehensive overview see Cudak v. Lithuania ([GC], no. 15869/02, § § 25 et seq ., ECHR 2010 ‑ ... ). 2. Case-law of the Court of Cassation 24. The Court of Cassation considers that a foreign State only enjoys jurisdictional immunity when the act giving rise to the dispute is an act of governmental authority or has been performed in the exercise of a public service ( Court of Cassation, First Civil Division, 25 February 19 69, no. 67 - 10243, Bull. I, no. 86). In other words it verifies, on a case-by-case basis, whether the act, by its nature or purpose, has contributed to the exercise of the foreign State ’ s sovereignty, as opposed to an act of administration ( Court of Cassation, Combined Divisions, 20 June 2003, appeals nos. 00-45629 and 00-45630, Bull. Ch. M. no. 4). 25. Applying this criterion, the Court of Cassation found that jurisdictional immunity could not be granted in a dispute concerning an embassy employee who had no particular responsibility in the exercise of the public diplomatic service (Court of Cassation, First Civil Division, 11 February 1997, appeal no. 94-41871, Bull. I no. 49, for a caretaker; Court of Cassation, Employment Division, 10 November 1998, appeal no. 9 6 - 41534, Bull. V no. 479, concerning a nurse-medical secretary; and Court of Cassation, Employment Division, 14 December 2005, appeal no. 03-45973, in respect of a senior clerk in the national section of a consulate). The same principle applies where a State decides to close a consular mission: whilst it enjoys jurisdictional immunity as regards the assessment of the reasons for the closure decision, the French courts retain the power to verify the reality of the closure and to rule on the consequences of any redundancy caused thereby ( Court of Cassation, Employment Division, 31 March 200 9, appeal no. 07-45618, Bull. V no. 92). 26. The assessment of that criterion, however, falls within the unfettered discretion of the Court of Appeal for the final decision on the facts and evidence ( Court of Cassation, Employment Division, 9 October 2001, appeal no. 98-46214, concerning a translator in the passport office). B. French Code of Civil Procedure 27. The relevant provision of the Code of Civil Procedure reads as follows: Article 455 “ Judgments shall set forth succinctly the respective claims of the parties and their grounds. Such presentation may take the form of a reference to the pleadings of the parties with an indication of their date. Judgments shall be reasoned. They shall state the decision in an operative paragraph.” THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 28. The Government raised a preliminary objection to the effect that domestic remedies had not been exhausted. A. The Chamber ’ s findings 29. The Chamber declared the application admissible, after rejecting the Government ’ s objection that domestic remedies had not been exhausted, finding that the applicant had raised the complaint under Article 6 of the Convention in substance in his appeal on points of law, since he had challenged the Court of Appeal ’ s findings as to the exact scope of his duties and responsibilities and had argued that the principle of the foreign State ’ s jurisdictional immunity did not apply, in matters of employment contracts, when the employee, like himself, had no particular responsibility in the exercise of the public service. B. The parties ’ submissions 1. The Government 30. The Government reiterated their objection as to non-exhaustion of domestic remedies, since the applicant had not raised, in support of his appeal on points of law, the question of his lack of access to a court. They took the view that the single ground of appeal in his written submissions to the Court of Cassation had concerned a breach of the obligation to state reasons, not the actual principle of the State of Kuwait ’ s jurisdictional immunity. 2. The applicant 31. The applicant pointed out that, in his appeal on points of law, he had submitted arguments challenging the application to his case of the principle of jurisdictional immunity of a foreign State, and had thus precisely contested the infringement of his right to a fair hearing. He added that, in his pleadings before the Court of Appeal, he had already raised in substance his complaint about a violation of Article 6 § 1 of the Convention, since he had developed at length the argument that his employer could not be granted such immunity. C. The Grand Chamber ’ s assessment 32. The Grand Chamber reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Hentrich v. France, 22 September 1994, § 33, Series A no. 296-A; Remli v. France, 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II; and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V ). Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24, and Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996 ‑ IV ). Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see Cardot v. France, 19 March 1991, § 34, Series A no. 200, and Selmouni, cited above ). 33. In the present case the Grand Chamber notes that, in his full pleadings in support of his appeal on points of law, the applicant challenged the findings of the Paris Court of Appeal as to the exact scope of his duties. His single ground of appeal criticised the Court of Appeal ’ s finding that he “ enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service and participated in acts of governmental authority of the State of Kuwait ”. Moreover, his arguments directly and expressly concerned the question of the foreign State ’ s jurisdictional immunity, challenging the application of this principle to his case. 34. In those circumstances, the Grand Chamber takes the view, like the Chamber, that the complaint submitted to it was actually made in substance before the domestic courts. Accordingly, the Government ’ s preliminary objection must be dismissed. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 35. The applicant claimed that he had been deprived of his right of access to a court on account of the jurisdictional immunity invoked by his employer and upheld by the domestic courts. He relied on Article 6 § 1 of the Convention, of which the relevant part reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Applicability of Article 6 § 1 36. As regards the applicability of Article 6 § 1, the Government left the matter to the Court ’ s discretion. 37. The applicant submitted that he unquestionably possessed a right which was the subject of a dispute ( contestation ), that his claims were civil in nature and that Article 6 was applicable. 38. The Court refers to its finding in Vilho Eskelinen that in order for the respondent State to be able to rely before the Court on the applicant ’ s status as a civil servant in excluding the protection embodied in Article 6, two conditions must be fulfilled. First, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State ’ s interest (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 ‑ IV ). It should be pointed out, however, that that judgment concerned relations between the State and its own civil servants, thus differing from the present case. 39. Moreover, it cannot reasonably be argued that the second condition has been fulfilled in the applicant ’ s situation. It can be seen from the documents before the Court that he was employed as an accountant, then as head accountant from 17 April 1985, in the Kuwaiti embassy. The Court is of the opinion that the performance of such duties cannot, in itself, justify an exclusion based on objective grounds in the State ’ s interest, within the meaning of the above-cited Vilho Eskelinen judgment. 40. It remains to be examined whether the dispute in question concerned a civil right within the meaning of Article 6 § 1. In this connection the Court points out that Article 6 § 1 applies to disputes ( contestations ) concerning civil “rights” which can be said, at least on arguable grounds, to be recognised under domestic law, whether or not they are also protected by the Convention (see, in particular, Editions Périscope v. France, 26 March 1992, § 35, Series A no. 234 ‑ B, and Zander v. Sweden, 25 November 1993, § 22, Series A no. 279 ‑ B ). The dispute may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question (see Vilho Eskelinen, cited above, § 40). The Court has thus previously found Article 6 applicable in respect of a civil servant in the employ of a secondary school who had been appointed as accountant and did not participate in the exercise of powers conferred by public law (see Martinie v. France [GC], no. 58675/00, § 30, ECHR 2006 ‑ ... ). The Court reached the same conclusion as regards a former employee of a foreign embassy who was seeking compensation for unfair dismissal (see Cudak, cited above, § 46). 41. The Court finds in the present case that the above-mentioned conditions are fulfilled, as the applicant ’ s action before the French courts concerned compensation for dismissal without genuine and serious cause. 42. Accordingly, Article 6 § 1 of the Convention was applicable in the present case. B. Compliance with Article 6 § 1 1. The parties ’ arguments (a) The applicant 43. The applicant submitted that, according to the Court ’ s case-law, any restrictions on the right to a court based on immunity from jurisdiction must be subject to a strict review of proportionality between the actual interference with that right and the aim pursued. He took the view that his action was admissible under the relevant case-law of the Court of Cassation. In his submission, his application was particularly well-founded in the light of the Cudak judgment (cited above), in which the Court had found that Article 11 of the UN Convention on Jurisdictional Immunities of States and their Property was applicable to the respondent State. He understood that this convention, signed by France in 2007, was currently pending ratification by the Senate. He also indicated that the French Court of Cassation did not regard as absolute the international-law principle of jurisdictional immunity of foreign States. He had not performed any particular functions related to the exercise of governmental authority and his duties certainly did not have any bearing on the security interests of the State of Kuwait, within the meaning of Article 11 § 2 (d) of the above-mentioned Convention on Immunities. Lastly, he had been neither a diplomatic or consular agent nor a national of the State of Kuwait, and his dispute concerned labour law. (b) The Government 44. The Government considered that the restriction on the applicant ’ s right of access to a court had pursued a legitimate aim and was proportionate to that aim, being consistent with the principles laid down in Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001 ‑ XI (extracts)), and Cudak (cited above ). They observed that in its Cudak judgment the Court had stated that it was necessary to take account of customary international law : in that context, it had therefore been for the Court of Appeal to determine whether the applicant ’ s duties were such that he participated in the exercise of the sovereignty of the State of Kuwait and thus whether the principle of immunity from jurisdiction was applicable. That principle had been upheld after an assessment of the facts by reference to the applicant ’ s duties as a whole, according to the realistic approach that must prevail in the implementation of the rules of international law. In view of his level of responsibility and of the nature of all his duties, it could not be considered that, by granting immunity to Kuwait, France had overstepped its margin of appreciation. 45. The Government argued in this connection that there were a number of fundamental differences between the present case and that of Cudak : in the latter, the Lithuanian Supreme Court had inferred from the title of the applicant ’ s duties that she participated in the exercise of governmental authority, although that had not been demonstrated; and the applicant ’ s dismissal had originally arisen from her harassment by one of her colleagues, a member of the diplomatic staff. In the present case, by contrast, there had been no reprehensible conduct on the part of an embassy staff member directed against the applicant; he had been employed as head accountant, not as a switchboard operator; and the Court of Appeal had based its judgment on the duties actually performed, not on inferences, in the light of the documents produced. As regards those documents, the Government indicated that they had been returned to the parties following the close of the proceedings and that reference could thus only be made to the judgment of the Court of Appeal. 2. The Court ’ s assessment (a) General principles 46. The Court reiterates that the right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, must be construed in the light of the principle of the rule of law, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights (see Běleš and Others v. the Czech Republic, no. 47273/99, § 49, ECHR 2002 ‑ IX ). Everyone has the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 43, ECHR 2001 ‑ VIII ). 47. However, the right of access to a court secured by Article 6 § 1 is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention ’ s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999 ‑ I; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 98, ECHR 2001-V; Fogarty, cited above, § 33; and Cudak, cited above, § 55). 48. Moreover, the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, Article 31 § 3 (c) of which indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties”. The Convention, including Article 6, cannot be interpreted in a vacuum (see Fogerty, cited above, § 35). The Court must therefore be mindful of the Convention ’ s special character as a human rights treaty, and it must also take the relevant rules of international law into account, including those relating to the grant of State immunity (see Loizidou v. Turkey (merits), 18 December 1996, § 43, Reports 1996 ‑ VI; Fogarty, cited above, § 35; and Cudak, cited above, § 56 ). 49. It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to a court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the rule of State immunity (see Al- Adsani v. the United Kingdom [GC], no. 35763/97, § 56, ECHR 2001 ‑ XI; Kalogeropoulou and Others v. Greece and Germany ( dec .), no. 59021/00, ECHR 2002-X; Fogarty, cited above, § 36; and Cudak, cited above, § 57). 50. Furthermore, it should be remembered that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see Aït-Mouhoub v. France, 28 October 1998, § 52, Reports 1998-VIII). It would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on categories of persons (see Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B). 51. Therefore, in cases where the application of the rule of State immunity from jurisdiction restricts the exercise of the right of access to a court, the Court must ascertain whether the circumstances of the case justified such restriction. 52. The Court further reiterates that such limitation must pursue a legitimate aim and that State immunity was developed in international law out of the principle par in parem non habet imperium, by virtue of which one State could not be subject to the jurisdiction of another (see Cudak, cited above, § 60, and Al- Adsani, cited above, § 54 ). It has taken the view that the grant of immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State ’ s sovereignty (ibid.). 53. In addition, the impugned restriction must also be proportionate to the aim pursued. In this connection, the Court observes that the application of absolute State immunity has, for many years, clearly been eroded, in particular with the adoption of the Convention on Jurisdictional Immunities of States and their Property by the United Nations General Assembly in 2004 ( see Cudak, cited above, § 64). This convention is based on Draft Articles adopted in 1991, of which Article 11 concerned contracts of employment and created a significant exception in matters of State immunity, the principle being that the immunity rule does not apply to a State ’ s employment contracts with the staff of its diplomatic missions abroad, except in the situations that are exhaustively enumerated in paragraph 2 of Article 11 ( ibid., § 65 ). 54. Furthermore, it is a well-established principle of international law that a treaty provision may, in addition to the obligations it creates for the Contracting Parties, also be binding on States that have not ratified it in so far as that provision reflects customary international law, either “codifying” it or forming a new customary rule ( ibid., § 66 ). Consequently, Article 11 of the International Law Commission ’ s 1991 Draft Articles, as now enshrined in the 2004 Convention, applies under customary international law, even if the State in question has not ratified that convention, provided it has not opposed it either (ibid., §§ 66-67). (b) Application of these principles to the present case 55. The Court first observes that in the Cudak case, which concerned the dismissal of a member of the local staff of an embassy, it found that the restrictions on the right of access to a court pursued a legitimate aim ( ibid., § 62). It does not find any reason to reach a different conclusion in the present case. 56. It should therefore now be examined whether the impugned restriction on the applicant ’ s right of access to a court was proportionate to the aim pursued. 57. As the Court has pointed out (see paragraph 54 above), Article 11 of the International Law Commission ’ s 1991 Draft Articles, as now enshrined in the 2004 Convention, applies under customary international law, even if the State in question has not ratified that convention, provided it has not opposed it either ( see Cudak, cited above, §§ 66-67). For its part, France has not ratified it but has not opposed it: on the contrary, it signed the convention on 17 January 2007 and the ratification procedure is currently pending before the French Parliament (see paragraph 22 above). 58. Consequently, it is possible to affirm that the provisions of the 2004 Convention apply to the respondent State, under customary international law (see Cudak, cited above, § 67), and the Court must take this into consideration in examining whether the right of access to a court, within the meaning of Article 6 § 1, was respected. 59. As was the case in Cudak with Lithuanian law, this finding is confirmed by French domestic law. In its case-law, the Court of Cassation refuses to apply jurisdictional immunity in an absolute manner, taking the view that it is not applicable in the context of a dispute concerning an embassy employee who has no particular responsibility in the exercise of the public diplomatic service (see paragraph 25 above). That was the position it took, in particular, in a similar case, not concerning the restructuring of an embassy as in the present case, but the reorganisation by a State of its diplomatic mission. It found in that case that whilst the State enjoyed immunity from jurisdiction as to the assessment of the reasons for a decision to close a mission, the French courts retained the power to verify the reality of the closure and to rule on the consequences of any resulting redundancies (ibid.). 60. Furthermore, the Court takes the view that the applicant, who was neither a diplomatic or consular agent of Kuwait, nor a national of that State, did not fall within any of the exceptions enumerated in Article 11 of the 2004 Convention. The Court observes that this Article enshrines the rule that a State has no jurisdictional immunity in respect of employment contracts, except in the situations exhaustively enumerated therein. 61. The Court notes in particular that paragraph 2 (a) of Article 11 is clearly irrelevant to the present case, as the applicant was not employed to perform any particular duties in the exercise of governmental authority. As to paragraph 2 (d), which expressly concerns the dismissal of an employee, it cannot apply in the present case since it has not been established that there was any risk of interference with the security interests of the State: the judgment of the Paris Court of Appeal makes no reference to any claim by the State of Kuwait that the head of State, the head of Government or the Minister for Foreign Affairs ( the authorities enumerated in that provision ), were of the opinion that such a risk existed. 62. The Court observes that the applicant, who was recruited in 1980 by the Kuwaiti embassy, performed the duties of accountant, then head accountant, until his dismissal in 2000 on economic grounds. On 17 April 1985, when he was promoted to the post of head accountant, an official note listed his tasks within the embassy ’ s accounts department, without mentioning any other tasks inside or outside that department (see paragraph 7 above). Similarly, a certificate of employment dated 19 January 2000 only indicates his post as head of the accounts department (see paragraph 9 above). Only a statement signed on 3 December 1999 by some twenty employees indicates that the applicant had also assumed another role, that of staff representative on an unofficial basis (see paragraph 8 above). Neither the domestic courts nor the Government, which indicated for their part that they had no choice other than to refer to the findings of the Court of Appeal, as they had not been a party to the proceedings, have shown how these duties could objectively have been linked to the sovereign interests of the State of Kuwait. 63. Admittedly, the Court of Appeal ’ s judgment, enumerating a series of “additional responsibilities” that the applicant had supposedly assumed, infers from this that he did not perform mere acts of administration but had a degree of autonomy which meant that he carried out his activities in the interest of the public diplomatic service and thus participated in acts of governmental authority of the State of Kuwait (see paragraph 15 above). 64. The Court notes, however, that the Court of Appeal merely asserted that such “additional responsibilities” existed, without justifying its decision by explaining on what basis – documents or facts brought to its attention – it had reached that conclusion. 65. The Court of Cassation did not give any more extensive reasoning on that point, which was nevertheless an essential one with regard to the allegation of a breach of the right of access to a court. It confined itself to examining the case not according to the ordinary procedure but in the context of the preliminary admissibility procedure for appeals on points of law, under Article L. 131-6 of the Code of Judicial Organisation. Whilst that procedure is compliant per se with the provisions of Article 6 of the Convention (see Burg and Others v. France ( dec .), no. 34763/02, 28 January 2003, and Salé v. France, no. 39765/04, § 17, 21 March 2006 ), it nevertheless permits a level of legal consideration, concerning the merit of the appeal, that is substantially limited (see Salé, cited above, § 19). 66. In addition, the Court notes that the Court of Appeal and the Court of Cassation also failed to take into consideration the provisions of Article 11 of the 2004 Convention, in particular the exceptions enumerated therein that must be strictly interpreted. 67. In conclusion, by upholding in the present case an objection based on State immunity and dismissing the applicant ’ s claim without giving relevant and sufficient reasons, and notwithstanding the applicable provisions of international law, the French courts failed to preserve a reasonable relationship of proportionality. They thus impaired the very essence of the applicant ’ s right of access to a court. 68. Accordingly, there has been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 70. The applicant claimed 82,224.60 euros ( EUR ) in respect of pecuniary damage, covering the total amount awarded by the employment tribunal. He also sought EUR 2,000 euros in respect of non-pecuniary damage. 71. The Government argued that the pecuniary damage alleged by the applicant was hypothetical and bore no direct causal link with the alleged violation. They took the view that the only possible award would arise from the non-pecuniary damage claimed, for the sum of EUR 2,000. 72. The Court observes that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of Article 6. Whilst the Court cannot speculate as to the outcome of the trial had the position been otherwise, it does not find it unreasonable to regard the applicant as having incurred a loss of real opportunities (see, among other authorities, Colozza v. Italy, 12 February 1985, § 38, Series A no. 89, and Cudak, cited above, § 79 ). In addition, the applicant has sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy. Ruling on an equitable basis, as required by Article 41, the Court awards the applicant EUR 60 ,000 for all heads of damage combined. B. Costs and expenses 73. The applicant indicated that he had been obliged to use the services of a number of lawyers and a translator in the domestic proceedings in order to seek redress for the breach of his rights under the Convention. He claimed EUR 11,984.73 on that basis, together with EUR 4,784 for the proceedings before the Court, representing a total of EUR 16,768.73, for which he produced all the invoices and fee notes. 74. The Government, which merely referred back to their observations before the Chamber, argued that the applicant had substantiated his claim only by two invoices for EUR 3, 588 and EUR 1,196, the remainder not being justified and moreover appearing disproportionate. In their view, any sum that might be awarded to the applicant should not therefore exceed EUR 4,784. 75. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, among many other authorities, E.B. v. France [GC], no. 43546/02, § 105, ECHR 2008 ‑ ... ., and Micallef v. Malta [GC], no. 17056/06, § 115, ECHR 2009 ‑ ... ). In the present case, regard being had to the above criteria and the documents in its possession, the applicant having substantiated before the Grand Chamber the full amount claimed, the Court finds the sum of EUR 16,768 reasonable and awards it to him. C. Default interest 76. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | As regards the applicability of Article 6 (right of access to court) of the Convention to the present case, the Court considered that the applicant’s duties in the Embassy could not, as such, justify restrictions on his access to a court based on objective grounds in the State’s interest. Moreover, the applicant’s action before the French courts had concerned compensation for dismissal without genuine and serious cause. His dispute had thus concerned civil rights and Article 6 § 1 was applicable. As regards the merits, the Court held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention. It found that the French courts had failed to preserve a reasonable relationship of proportionality. They had thus impaired the very essence of the applicant’s right of access to a court. |
1,019 | Right to respect for private life (Article 8 of the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE 26. Section 47 of the National Health Service and Community Care Act 1990 (“the 1990 Act”) provides that: “ ( 1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority— (a) shall carry out an assessment of his needs for those services; and (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services. ... ... ... (4)The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but, subject to any such directions and to subsection (7) below, it shall be carried out in such manner and take such form as the local authority consider appropriate.” 27. Disabled persons also have an individual right to certain services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (“the 1970 Act”), which reads as follows: “Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely— (a) the provision of practical assistance for that person in his home; ... ... ... then, ... it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.” 28. It was decided by the House of Lords in R v Gloucestershire County Council Ex p Barry [1997] AC 584 (by a majority of three to two) that “need” was a relative concept and that needs for services could not sensibly be assessed without having some regard to the cost of providing them. A person ’ s need for a particular type or level of service could not be decided in a vacuum from which all other considerations of cost had been expelled. Consequently, the position subsequently established was that the local authority was under a duty to make an assessment of needs under section 47(1 )( a) of the 1990 Act and in doing so might take account of its resources. If the need fell into one of the four bands described in the Fair Access to Care Services (“FACS”) Guidance (critical, substantial, moderate or low) – which, having regard to its resources, the local authority had indicated it would meet – then it had to meet that need. In deciding how to meet the need, the local authority was entitled to take account of its resources. 29. The FACS Guidance issued on 1 January 2003 (which remained in force until new guidance was issued in February 2010) provided, as relevant, that: councils should ensure that individuals in similar circumstances receive services capable of achieving broadly similar outcomes; reviews should be undertaken at regular intervals to ensure that the care provided to individuals is still required and is achieving the agreed outcomes; and that reviews should establish how far the services provided have achieved the outcomes set out in the care plan, reassess the needs and circumstances of individual service users, help determine individuals ’ continued eligibility for support, and confirm or amend the current care plan. III. RELEVANT INTERNATIONAL LAW A. The United Nations Convention on the Rights of Persons with Disabilities 30. Article 3 provides, as relevant, that: “ The principles of the present Convention shall be: a. Respect for inherent dignity, individual autonomy including the freedom to make one ’ s own choices, and independence of persons; ... ... ... ” 31. Article 17 provides that: “ Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others. ” 32. Finally, Article 19 provides that: “ States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: a. Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; b. Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; c. Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs. ” B. The European Union Charter of Fundamental Rights 33. Article 1 provides that “[h] uman dignity is inviolable. It must be respected and protected. ” 34. The United Kingdom has signed a protocol to the Charter which precludes, inter alia, the domestic courts and the EU ’ s courts from finding that its “ laws, regulations or administrative provisions, practices or action” are inconsistent with the Charter. However, there is considerable debate concerning the legal effect of the protocol. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 35. The applicant complained under Article 8 of the Convention that the withdrawal of night-time care disproportionately interfered with her right to respect for her private life. In the alternative, she complained that by withdrawing the service the respondent State was in breach of its positive obligation to provide her with a service which enabled her to live with dignity. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 36. The Government contested that argument. A. Admissibility 37. The Government submitted that the Court should declare the Article 8 complaint inadmissible because it was manifestly ill-founded. The Court considers that the issue of whether or not the applicant ’ s complaint is manifestly ill-founded is closely linked to the merits. It therefore considers it necessary to join the Government ’ s objection to the merits of the applicant ’ s complaint. B. Merits 1. The applicant ’ s submissions 38. The applicant submitted that the decision to withdraw night-time care from her and require her to use incontinence pads, even though she was not incontinent, constituted an unjustified interference with her right to respect for her private life. In particular, she argued that it was difficult to conceive of a factual situation which established more of a “direct and immediate link” to the rights protected under Article 8 than a disabled person ’ s need or assistance to reach a toilet or commode where they could urinate and defecate in dignity. The aspects of Article 8 of the Convention relating to personal and psychological integrity were all in play, and the interference affected the applicant ’ s ability to maintain an independent life at home and negatively impacted on her family life with her partner. Moreover, it exposed her to considerable indignity and placed significant caring responsibilities on her partner, who had made it clear that he was unable to act as her carer. 39. In any case, the applicant submitted that up until 4 November 2009 the interference with her private life had not been in accordance with the law. 40. In the alternative, the applicant submitted that the respondent State had been under a positive obligation to provide night-time care given the special link between the provision of this care and her psychological integrity. The applicant ’ s local authority (the Royal Borough of Kensington and Chelsea) was one of the wealthiest in the United Kingdom and there would therefore have been no overwhelming cost barrier to the provision of such care. 41. The applicant further submitted that both the UN Convention on the Rights of Persons with Disabilities (see paragraphs 30 - 32 above) and the EU Charter of Fundamental Rights (see paragraphs 33 and 34 above) made it clear that a person ’ s inherent dignity and individual autonomy should be at the heart of the Article 8 right to private life. In particular, Article 19 of the Disability Convention required State parties to provide the personal assistance necessary to support living and inclusion in the community. According to the applicant, the only way that she could live a dignified life was through the continued provision of a night-time carer. 42. Finally, the applicant argued that the Supreme Court in the present case had wrongly applied the doctrine of the margin of appreciation to give such a margin to the executive (see paragraph 2 4 above). As a consequence, no proper consideration was given by the domestic courts to the proportionality and/or fairness of the decision in the applicant ’ s case and, if the Court were also to afford the same margin of appreciation to the State, there would have been no real proportionality assessment by any court. 2. The Government ’ s submissions 43. The Government submitted that there had been no interference with the applicant ’ s rights under Article 8 of the Convention. While they accepted that matters such as dignity and personal autonomy fell within the ambit of Article 8, they argued that the care provided to the applicant during the relevant period had respected her dignity and private life even if it was not the care package that she had wanted. However, the Government accepted that if the Court were to find that there had been an interference with the applicant ’ s rights as defined in paragraph 1 of Article 8, that interference would have constituted a violation from 21 November 2008 to 4 November 2009 because it was not “ in accordance with the law ” as required by the second paragraph of that Article. 44. From 4 November 2009 onwards, any interference was in accordance with the law and was necessary and proportionate in the interests of other care- users and the economic well-being of the State given the substantial demand for adult care services. In this regard, the Government noted that the Court has repeatedly held that while States enjoy a wide margin of appreciation in striking a fair balance between the competing interests of the individual and of the community as a whole, this margin is even wider where the issues involve an assessment of priorities in the context of the allocation of limited State resources (see, for example, Sentges v. the Netherlands ( dec. ), no. 27677/02, 8 July 2003, Pentiacova and Others v. Moldova ( dec. ), no. 14462/03, ECHR 2005 ‑ I, Molka v. Poland ( dec. ), no. 56550/00, 11 April 2006). The Government therefore submitted that the decision to withdraw night-time care was proportionate and fell within its margin of appreciation. 45. The Government accepted that the applicant had been entitled to support at night in accordance with her right to respect for her private life, including her dignity and personal autonomy; however, in determining what measures should be adopted to fulfil her need, the State was entitled to have regard to the interests of other care users and the limited resources available to meet the substantial demand for adult care services. The Government therefore argued that it was not under any positive obligation to provide the applicant with the requisite support in the form of night-time care. To the extent that it was under a duty by virtue of Article 8 to provide her with a service which enabled her to live with dignity, that obligation had been met by the care package provided by the local authority. 3. The Court ’ s assessment (a) The scope of Article 8 46. The first question which arises is whether the facts of the case fall within the scope of the concept of “respect” for “private life” set forth in Article 8 of the Convention. In this regard, the Court has previously held that the notion of “private life” within the meaning of Article 8 is a broad concept which encompasses, inter alia, a person ’ s physical and psychological integrity (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 ‑ B and Botta v. Italy, 24 February 1998, § 32, Reports of Judgments and Decisions 1998 ‑ I ); the right to “ personal development ” (see Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001 ‑ I); and the notion of personal autonomy (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III). In a number of cases the Court has held that Article 8 was relevant to complaints about public funding to facilitate the mobility and quality of life of disabled applicants (see, for example, Zehnalová and Zehnal v. the Czech Republic ( dec. ), no. 38621/97, ECHR 2002 ‑ V and Sentges v. the Netherlands ( dec. ), no. 27677/02, 8 July 2003). 47. In Pretty the Court held that the very essence of the Convention was respect for human dignity and human freedom; indeed, it was under Article 8 that notions of the quality of life took on significance because, in an era of growing medical sophistication combined with longer life expectancies, many people were concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflicted with their strongly held ideas of self and personal identity ( Pretty v. the United Kingdom, cited above, § 65). Although the facts of the present case differ significantly from those of Pretty, insofar as the present applicant believed that the level of care offered by the local authority would have undignified and distressing consequences, she too was faced with the possibility of living in a manner which “conflicted with [her] strongly held ideas of self and personal identity ”. In the Supreme Court, Baroness Hale, in her dissenting opinion, appeared to accept that considerations of human dignity were engaged when someone who could control her bodily functions was obliged to behave as if she could not (see paragraph 25 above ). The Court agrees with this general assessment of the applicant ’ s situation and it does not exclude that the particular measure complained of by the applicant in the present case was capable of having an impact on her enjoyment of her right to respect for private life as guaranteed under Article 8 § 1 of the Convention. It therefore finds that the contested measure reducing the level of her healthcare falls within the scope of Article 8. (b) Positive obligation or interference with a right? 48. The Court has previously considered a number of earlier cases concerning funding for care and medical treatment as falling within the sphere of possible positive obligations because the applicants complained in substance not of action but of a lack of action by the respondent States (see, for example, Sentges v. the Netherlands and Pentiacova v. Moldova, both cited above). Those cases concerned the refusal by the State to provide funding for medical equipment and/or treatment. In the present case, however, the local authority had initially provided the applicant with a night-time carer, albeit, in the description of the Supreme Court, as a “concession” granted on a “temporary basis” (see paragraph 11 above ). The applicant is therefore complaining not of a lack of action but rather of the decision of the local authority to reduce the care package that it had hitherto been making available to her. As such, a more appropriate comparator would be the case of Watts v. The United Kingdom ( dec. ), no. 53586/09 of 4 May 2010, in which the Court was content to proceed on the basis that a decision to close the care home where the elderly applicant was resident and to transfer her to another home constituted an interference with her rights under Article 8. 49. The Court is likewise prepared to approach the present case as one involving an interference with the applicant ’ s right to respect for her private life, without entering into the question whether or not Article 8 § 1 imposes a positive obligation on the Contracting States to put in place a level of entitlement to care equivalent to that claimed by the applicant. (c) Compliance with Article 8 § 2 50. Such an interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned. ( i ) The period from 21 November 2008 to 4 November 2009 51. The Supreme Court (see paragraph 24 above), upholding the Court of Appeal (see paragraph 19 above), held that the local authority had been in breach of its statutory duty to provide care to the applicant in accordance with its own assessment of her need for care (namely a need for assistance to use a commode during the night ) between 21 November 2008 (the date of the letter from the local authority withdrawing night-time care – see paragraph 12 above) and 4 November 2009 (the date of the authority ’ s first care plan review – see paragraph 16 above). In light of this finding, the Government have accepted (see paragraph 43 above) that during this period any interference with the applicant ’ s right to respect for her private life was not “ in accordance with the law ” as required by paragraph 2 of Article 8. 52. The Court cannot but find that from 21 November 2008 to 4 November 2009 the interference with the applicant ’ s right to respect for her private life was in breach of Article 8 of the Convention on this ground. ( ii ) From 4 November 2009 onwards 53. From 4 November 2009 onward, there is no doubt that the interference was “ in accordance with the law ”. The Court also accepts that the interference pursued a legitimate aim, namely the economic well-being of the State and the interests of the other care-users. It therefore falls to the Court to consider whether the decision not to provide the applicant with a night-time carer to help her to access a commode was “necessary in a democratic society” for the purposes of paragraph 2 of Article 8 and, in particular, in that connection, was proportionate to the legitimate aim pursued. 54. In conducting the balancing act required by Article 8 § 2 the Court has to have regard to the wide margin of appreciation afforded to States in issues of general policy, including social, economic and health-care policies (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98; Shelley v. the United Kingdom ( dec. ), no. 23800/06, 4 January 2008); and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII). The margin is particularly wide when, as in the present case, the issues involve an assessment of priorities in the context of the allocation of limited State resources (see, mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3159, § 116, O ’ Reilly and Others v. Ireland ( dec. ), no. 54725/00, 28 February 2002, unreported). In view of their familiarity with the demands made on the health care system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court. 55. In the present case the Supreme Court primarily considered the applicant ’ s Article 8 complaint within the sphere of positive obligations. It therefore had to consider whether or not a fair balance had been struck between the interests of the applicant and those of the wider community and it would have been impossible to do so without addressing one of the fundamental principles underpinning the Court ’ s jurisprudence in such cases: namely, that States are afforded a wide margin of appreciation in issues of general policy, and that margin is particularly wide when the issues involve an assessment of the priorities in the context of the allocation of limited State resources (see paragraph 5 4 above). 56. In any case, the Court observes that the proportionality of the decision to reduce the applicant ’ s care package was fully considered, first by the local authority in the course of its regular Care Plan Reviews and, secondly, by the domestic courts (including the Court of Appeal and the Supreme Court). In particular, in concluding that there had been no interference with the applicant ’ s rights under Article 8, Lord Brown considered the great lengths to which the local authority had gone to consult – and, in fact, to reach an agreement with – the applicant and her partner. He further noted that the applicant ’ s personal feelings and desires had properly been balanced against the local authority ’ s concern for her safety, independence and respect for other care-users. Finally, he concluded that even if there had been an interference with her right to respect for her private life, save for the period prior to 4 November 2009 review when the proposed care provision was not “ in accordance with the law ”, the interference would have been necessary for the economic well-being of the respondents (that is, the local authority) and the interests of their other care ‑ users and would therefore have been a proportionate response to her needs because it would have afforded her the maximum protection from injury, greater privacy and independence, and would have resulted in a substantial costs saving (see paragraph 24 above). 57. The Court is satisfied that the national courts adequately balanced the applicant ’ s personal interests against the more general interest of the competent public authority in carrying out its social responsibility of provision of care to the community at large. It cannot, therefore, agree with the applicant that there has been no proper proportionality assessment at domestic level and that any reliance by it on the margin of appreciation would deprive her of such an assessment at any level of jurisdiction. In such cases, it is not for this Court to substitute its own assessment of the merits of the contested measure (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities (notably the courts) unless there are shown to be compelling reasons for doing so (see, for example, X v. Latvia [GC], no. 27853/09, § 102, ECHR 2013). The present applicant has not adduced any such compelling reasons in her pleadings before this Court. 58. The foregoing considerations are sufficient to enable the Court to conclude that from 4 November 2009 onwards the interference with the applicant ’ s right to respect for her private life was both proportionate and justified in terms of the requirement of “necessity in a democratic society” under Article 8 § 2. The Court by no means wishes to underestimate the difficulties encountered by the applicant and it appreciates the very distressing situation she is facing. Nevertheless, the Court is of the opinion that in reducing her care-package it cannot be said that the competent authorities of the respondent State exceeded the margin of appreciation afforded to them, notably in relation to the allocation of scarce resources. It follows that in respect of this period the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. (iii) Conclusion 59. There has accordingly been a violation of Article 8 of the Convention in respect of the period from 21 November 2008 to 4 November 2009. The remainder of the applicant ’ s complaint is inadmissible. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 61. The applicant claimed ten thousand euros (EUR 10,000 ) in respect of non-pecuniary damage. 62. The Government submitted that a finding of a violation was itself sufficient to provide just satisfaction. No award of damages was therefore appropriate. 63. The Court awards the applicant EUR 1,000 in respect of non ‑ pecuniary damage. In arriving at this figure, it has taken account of the fact that the applicant continued to receive night-time care seven days a week up to November 2008; that from November 2008 to December 2008 she continued to receive night-time care five days a week; and between December 2008 and 4 November 2009 (representing the end of the period in respect of which the Court has found a violation of Article 8) she received night-time care four nights a week. Moreover, on the nights when she did not receive night-time care, her partner was on hand to assist her with her nightly toileting needs. B. Costs and expenses 64. The applicant also claimed GBP 9,822 for the costs and expenses incurred before the Court. 65. The Government submitted that this figure was excessive. 66. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of GBP 9,500 covering costs under all heads. C. Default interest 67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court considered that the decision to reduce the amount allocated for the applicant’s care had interfered with her right to respect for her private life, insofar as it required her to use incontinence pads when she was not actually incontinent. It held that there had been a violation of Article 8 of the Convention in respect of the period between 21 November 2008 and 4 November 2009 because the interference with the applicant’s rights had not been in accordance with domestic law during this period. However, from 4 November onwards the Court found that the local authority’s decision not to provide her with night-time care to aid her toileting needs was in accordance with domestic law. That interference had pursued a legitimate aim, namely the economic well-being of the State and the interests of other care-users. The case therefore turned on whether the interference was “necessary in a democratic society”, especially when weighed against the economic well-being of the State. In carrying out that balancing act, the Court bore in mind that States had considerable discretion (“a wide margin of appreciation”) in issues involving social, economic and health-care policy, especially when deciding how to allocate scarce resources. It was therefore not for the Court to substitute its own assessment of the merits of the contested measure for that of the competent national authorities. In this regard, the Court found that both the local authority (via regular care reviews) and the national courts (including the Court of Appeal and the Supreme Court) had balanced the applicant’s need for care with its social responsibility for the well-being of other care-users in the community at large. Therefore, despite the very distressing situation the applicant was facing, the European Court held that from 4 November 2009 onwards the interference with her right to respect for private life had been both proportionate and justified as “necessary in a democratic society” and rejected this part of her complaint as inadmissible. |
995 | Prohibition of inhuman or degrading treatment (Article 3 of the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The German Basic Law 29. Article 2 § 2 of the Basic Law reads: “ Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law. ” 30. Article 19 § 4 of the Basic Law, in so far as relevant, reads: “ Should any person ’ s rights be violated by public authority, he may have recourse to the courts. ... ” 31. Article 103 § 1 of the Basic Law, in so far as relevant, reads: “ In the courts every person shall be entitled to a hearing in accordance with the law. ... ” B. Criminal Investigations 32. The relevant provisions of the Code of Criminal Procedure regulating criminal investigations, in so far as relevant, read: Article 152 “ (1) The public prosecutor ’ s office shall have the authority to bring public charges. (2) Except as otherwise provided by law, the public prosecutor ’ s office shall be obliged to take action in relation to all prosecutable criminal offences, provided there are sufficient factual indications. ” Article 160 “ (1) As soon as a public prosecutor ’ s office obtains knowledge of a suspected criminal offence either through a criminal complaint or by other means it shall investigate the facts to decide whether to bring public charges. ... ” Article 170 “ (1) If an investigation provides sufficient reasons for bringing public charges, the public prosecutor ’ s office shall bring charges by submitting a bill of indictment to the competent court. (2) In all other cases a public prosecutor ’ s office shall terminate the proceedings. The public prosecutor shall notify the accused thereof if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he has requested such notice or if there is a particular interest in the notification. ” Article 171 “ If the public prosecution office does not grant an application for preferring public charges, or after conclusion of the investigation it orders the proceedings to be terminated, it shall notify the applicant, indicating the reasons. ... ” Article 200 “(1) The bill of indictment shall indicate the indicted accused, the criminal offence with which he is charged, the time and place of its commission, its statutory elements and the penal provisions which are to be applied (the charges). ... ” C. Organisation of the public prosecutor ’ s office 33. The organisation of the public prosecutor ’ s office is governed in the Courts Act ( Gerichtsverfassungsgesetz ). The relevant provisions, in so far as relevant, read: Section 142 of the Courts Act “ (1) The official duties of the public prosecutor ’ s office shall be discharged: ... 2. at the Courts of Appeal and the Regional Courts by one or more public prosecutors; 3. at the District Courts by one or more public prosecutors or officials of the public prosecutor ’ s office with a right of audience before the District Courts. ... ” Section 146 of the Courts Act “ The officials of the public prosecutor ’ s office must comply with the official instructions of their superiors. ” Section 147 of the Courts Act “ The right of supervision and direction shall lie with: ... 2. the Land agency for the administration of justice in respect of all the officials of the public prosecutor ’ s office of the Land concerned; 3. the highest-ranking official of the public prosecutor ’ s office at the Courts of Appeal and the Regional Courts in respect of all the officials of the public prosecutor ’ s office of the given court ’ s district. ” 34. The highest-ranking official of the public prosecutor ’ s office at the Courts of Appeal bears the title general public prosecutor. The Munich general public prosecutor supervises, inter alia, the public prosecutors at the Munich Regional Court. D. Relationship between the police and the public prosecutor ’ s office 35. The hierarchical order and relations between the public prosecutor ’ s office and the police are regulated by the CCP and the Courts Act. The relevant provisions, in so far as relevant, read: Article 161 of the CCP “ (1) For the purpose indicated in Article 160 § 1 to § 3 [of the CCP], the public prosecutor ’ s office shall be entitled to request information from all authorities and to initiate investigations of any kind, either itself or through the authorities and officials in the police force provided there are no other statutory provisions specifically regulating their powers. The authorities and officials in the police force shall be obliged to comply with such a request or order of the public prosecutor ’ s office and shall be entitled, in such cases, to request information from all authorities. ” Article 163 of the CCP “ (1) The authorities and officials in the police force shall investigate criminal offences and shall take all measures that may not be deferred, in order to prevent concealment of facts. To this end they shall be entitled to request, and in exigent circumstances to demand, information from all authorities, as well as to conduct investigations of any kind in so far as there are no other statutory provisions specifically regulating their powers. (2) The authorities and officials in the police force shall transmit their records to the public prosecutor ’ s office without delay. Where it appears necessary that a judicial investigation be performed promptly, transmission directly to the Local Court shall be possible. ... ” Section 152 of the Courts Act “ (1) The investigating personnel of the public prosecutor ’ s office shall be obliged in this capacity to comply with the orders of the public prosecutor ’ s office of their district and the orders of the officials ’ superior thereto. ... ” E. Proceedings to force criminal proceedings 36. The possibilities for an aggrieved person to challenge a decision to discontinue a criminal investigation are regulated in Article 172 of the CCP, which, in so far as relevant, reads: “ (1) Where the applicant is also the aggrieved person, he shall be entitled to lodge a complaint against the notification made in accordance with Article 171 [of the CCP, see paragraph 32 above] to the official superior of the public prosecutor ’ s office within two weeks of receipt of such notification. ... (2) The applicant may, within one month of receipt of notification, apply for a court decision in respect of the dismissal of the complaint by the official superior of the public prosecutor ’ s office. He shall be instructed as to this right and as to the form such an application shall take; the time - limit shall not run if no instruction has been given. ... (3) The application for a court decision must indicate the facts which are intended to substantiate the bringing of public charges, as well as the evidence. The application must be signed by a lawyer; legal aid shall be governed by the same provisions as in civil litigation. The application shall be submitted to the court competent to decide. (4) The Court of Appeal shall be competent to decide on the application. ... ” 37. The CCP provisions regulating the proceedings to force criminal proceedings read: Article 173 “ (1) Upon the request of a court a public prosecutor ’ s office shall submit to the court the records of the hearings conducted so far. (2) The court may inform the accused of the application, setting him a time- limit for making a statement in reply. (3) The court may order an investigation to prepare its decision and may entrust such investigations to a commissioned or requested judge. ” Article 175 “ If after hearing the accused, the court considers the application to be well ‑ founded, it shall order that public charges be brought. This order shall be carried out by the public prosecutor ’ s office. ” F. Proceedings before the Constitutional Court 38. Section 31 of the Federal Constitutional Court Act ( Bundesverfassungsgerichtsgesetz – hereinafter “ the Constitutional Court Act ”) declares the decisions of the Constitutional Court binding upon all constitutional organs, courts and administrative authorities. It reads: “(1) The decisions of the Constitutional Court shall be binding upon the constitutional organs of the Federation and of the Länder, as well as on all courts and those with public authority.” 39. Under section 32 of the Constitutional Court Act, the Constitutional Court is empowered to issue preliminary injunctions and under section 35 of the Constitutional Court Act it may specify who is to execute its decisions and the method of execution. These provisions read, as far as relevant, as follows: Section 32 “(1) In a dispute, the Constitutional Court may provisionally decide a matter by way of a preliminary injunction if this is urgently required to avert severe disadvantage, to prevent imminent violence or for another important reason in the interest of the common good. ... ” Section 35 “The Constitutional Court may specify in its decision who is to execute it; in individual cases it may also specify the method of execution.” 40. The relevant provisions regulating constitutional - complaint proceedings read: Section 90 “ (1) Any individual claiming a violation of one of his or her fundamental rights or of one of his or her rights under Article 20 § 4, Articles 33, 38, 101, 103, or 104 of the Basic Law by a public authority may lodge a constitutional complaint with the Constitutional Court. (2) If legal recourse to other courts exists, the constitutional complaint may only be lodged after all remedies have been exhausted. However, the Constitutional Court may decide on a constitutional complaint that was lodged before all remedies were exhausted if the complaint is of general relevance or if prior recourse to other courts were to the complainant ’ s severe and unavoidable disadvantage. ” Section 95 “ (1) If the Court allows a constitutional complaint, the decision shall declare which provision of the Basic Law was violated and by which act or omission. The Constitutional Court may simultaneously declare that any repetition of the contested act or omission would violate the Basic Law. (2) If the Court allows a constitutional complaint that challenges a decision, the Constitutional Court shall reverse the decision; in the cases referred to in § 90 sec. 2 sentence 1, it shall remit the matter to a competent court. ... ” 41. In accordance with the jurisdiction of the Constitutional Court the term “decision” in section 95(2) of the Constitutional Court Act is not limited to court decisions, but understood in a way that it entails every act of a public authority violating the fundamental rights of a plaintiff (1 BvR 289/56, 7 May 1957). In line with this understanding the Constitutional Court set aside, in the case 2 BvR 878/05 (17 November 2005), the reasoning of a decision to discontinue criminal proceedings, as it violated the presumption of innocence of the plaintiff. III. RELEVANT INTERNATIONAL LAW AND PRACTICE 42. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) stated in its report to the German Government published on 1 June 2017 on the visit to Germany from 25 November to 7 December 2015 (CPT/Inf (2017) 13) with reference to the Court ’ s judgments in Kummer v. the Czech Republic (no. 32133/11, §§ 85-87, 25 July 2013) and Eremiášová and Pechová v. the Czech Republic (no. 23944/04, 16 February 2012) that it : “has some doubts as to whether investigations carried out by investigators of the central investigation units – and even more so those carried out by criminal police officers of regional or local police headquarters – against other police officers can be seen to be fully independent and impartial.” (CPT/Inf (2017) 13, § 18) 43. The CPT further reiterated its recommendation that the police authorities should take the necessary steps to ensure that police officers wearing masks or other equipment that may hamper their identification be obliged to wear a clearly visible means of identification ( for example a number on the uniform and/or helmet). It held that: “ ... the CPT has repeatedly stressed that appropriate safeguards must be in place in order to ensure that police officers wearing masks or other equipment that may hamper their identification can be held accountable for their actions (e.g. by means of a clearly visible number on the uniform). Such a requirement is also likely to have a preventive effect and significantly reduce the risk of excessive use of force and other forms of ill-treatment.” (ibid., § 21) THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 44. The applicants alleged under Article 3 of the Convention that they had been beaten and had had pepper spray used on them by police officers who, owing to an inadequate investigation, had been neither identified nor punished. They also complained that the German legal system did not provide them with an effective judicial remedy to complain about the alleged ineffectiveness of the investigation. In this connection, the applicants relied on Article 1 3 of the Convention taken in conjunction with Article 3. 45. The Court, as master of the characterisation to be given in law to the facts of the case (see Bouyid v. Belgium [GC], no. 23380/09, § 55, ECHR 2015), finds it appropriate to examine the complaints solely under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties ’ submissions 1. The applicants (a) Substantive aspect of the complaint 46. The applicants argued that based on their statements to the Court and to the national authorities, which had been corroborated by the provided medical certificates, it had been established that they had been beaten and had had pepper spray used on them by police officers. Moreover, the investigation had not shown that the applicants had been behaving aggressively or had provoked the use of force in any way. Consequently, the attack they had endured had been unjustified and constituted ill-treatment in violation of Article 3 of the Convention. (b) Procedural aspect of the complaint (i) Effective official investigation 47. The applicants submitted that from the beginning there had been an arguable claim of excessive use of force by the police. Besides their own testimonies, the statements of other spectators at the match and several reports in the press had confirmed their account of events. Consequently, the national authorities had been obliged to conduct an investigation capable of leading to the identification and punishment of the responsible police officers. 48. The Government had, nevertheless, failed to do so, since the investigation had suffered from several deficiencies which had made it ineffective. Firstly, the investigation had never produced the identity of the deployed police officers and thereby of the possible suspects. Even though the authorities had deployed helmeted officers without any identifying insignia, the investigating unit had refused to identify and question the officers at issue. Secondly, the investigation had not been conducted by a sufficiently independent authority. The public prosecutor ’ s office had not been practically independent, owing to the proximity between the local police force and the local public prosecutor ’ s office and the fact that the latter had to rely on the local police force for the investigation in every single case. Moreover, for all practical purposes the investigation had been conducted by the Munich police and the Munich public prosecutor had only been informed of the status of the investigation. The investigating unit, however, had been part of the same police force as the officers they had been investigating. Therefore the investigating and the investigated unit had been under the command of the Munich Chief of Police and the investigation could not be considered to have been independent or impartial. Thirdly, the investigation had been neither prompt nor thorough. The investigator had failed to secure the entire video material before it had been deleted, had questioned witnesses only after a considerable time and had never questioned all the deployed police officers, or the paramedic who had treated the first applicant at the stadium. 49. These deficiencies had prevented the identification of the suspected perpetrators and the collection of further evidence, in particular witness statements of the colleagues of the suspected perpetrators confirming the applicants ’ accounts. In sum the deployment of helmeted officers without any identifying insignia in conjunction with the deficient investigation had led to the impunity of the perpetrators. (ii) Remedy to complain of the alleged ineffectiveness of the investigation 50. The applicants submitted that the German legal system had not provided them with an effective remedy to review the effectiveness of the investigation. At the outset they submitted that, given the hierarchical structure of the public prosecutor ’ s office, the general public prosecutor had not been sufficiently independent. Consequently, the complaint before the general public prosecutor under Article 172 § 1 of the CCP could not be considered an effective remedy in the meaning of Article 13 of the Convention. As regards judicial remedies at their disposal they referred to the Court ’ s judgment in Kaverzin v. Ukraine (no. 23893/03, § 93, 15 May 2012) and argued that an effective remedy would have required that the domestic courts had had the power to examine all relevant evidence, to overturn the prosecutor ’ s decision to discontinue, and to initiate enquiries. This, however, had not been the case for them. 51. Their application to force further enquiries had been interpreted by the Court of Appeal as an application to force criminal proceedings and had been declared inadmissible. The Court of Appeal had only assessed whether the public prosecutor ’ s office had entirely refrained from investigating a criminal offence but not whether the investigation had been effective within the meaning of Article 3 of the Convention. Moreover, the court had had the power only to bring charges, but not to reopen the investigation. 52. As regards the proceedings before the Constitutional Court, the applicants argued that the court had confined itself to assessing whether the decision of the Court of Appeal had been legitimate. It had not examined whether the investigation had been effective. Furthermore, the Constitutional Court had not had the power to initiate an investigation or to order specific investigative measures. In accordance with the Constitutional Court Act, the Constitutional Court could only declare which provision of the German Basic Law had been violated (section 95(1)) and refer the case back to the competent court (sections 95(2) and 90(1)). The competent court, however, would have been the Court of Appeal again, which had previously decided that it had not had the legal power to reopen the investigation and had declared the application to force further enquiries inadmissible. The applicants further submitted that up until that point there had never been a successful constitutional complaint challenging a decision that upheld the discontinuation of investigations in cases of alleged police violence in which the perpetrator had not been identified. 2. The Government (a) Admissibility 53. The Government submitted that the applicants ’ argument that the police had suppressed video material during the investigation should be dismissed owing to non-exhaustion of domestic remedies. After the investigation into this allegation had been discontinued, the applicants had not initiated court proceedings to force criminal proceedings. Moreover, the applicants had not raised this issue in their constitutional complaint. Similarly, the applicants had not complained about the promptness of the investigation before the Constitutional Court either. Lastly, the applicants had also failed to challenge the lack of a judicial remedy, in particular the alleged ineffectiveness of the proceedings to force criminal proceedings, before the Constitutional Court. (b) Substantive aspect of the complaint 54. The Government argued that it had not been established beyond reasonable doubt that the applicants had been subjected to treatment contrary to Article 3 of the Convention or that the authorities had had recourse to physical force which had not been rendered strictly necessary by the applicants ’ behaviour. 55. As regards the police operation as a whole the Government submitted that the police had been confronted with aggressive behaviour on the part of some supporters and had justifiably used their truncheons as a defensive weapon. However, there had been no indication that any police officer had intentionally struck or used pepper spray on the first or second applicant. The accounts of the applicants themselves had neither been credible nor supported by any evidence. (c) Procedural aspect of the complaint (i) Effective official investigation 56. As regards the obligation to effectively investigate the allegations of police violence, the Government submitted that, owing to the lack of a credible allegation, no such obligation had arisen. The German authorities had nonetheless conducted an effective investigation into the police operation and the applicants ’ allegations. 57. During the investigation thirty-nine witnesses had been questioned, including the video officers and the leaders of the relevant units. Moreover, all available video material had been analysed. An investigation into allegations of suppression and intentional destruction of the video material had not confirmed those allegations, but had shown that the material had been handled in accordance with the generally applicable policies. The investigation had been conducted by an independent authority, namely the public prosecutor ’ s office. As this office had not had their own investigators, they had instructed and supervised officers from the general police force. Lastly, the investigation had been sufficiently prompt and the applicants had been sufficiently involved therein. 58. Moreover, under Article 170 § 2 of the CCP the public prosecutor ’ s office could only bring public charges if the investigation had unearthed sufficient reasons to do so. This had not been so in the present case. Furthermore, the public prosecutor ’ s office had not been obliged to carry out unorthodox investigative measures. It was permissible to omit such measures if weighing up the effort and the anticipated outcome did not justify their taking. Therefore, the public prosecutor ’ s office had justifiably refrained from questioning the individual police officers involved, as it had already questioned their commanders. 59. In sum the investigation had not led to the punishment of a suspect because the allegations of the applicants had not been confirmed and not because the suspected police officers had not or could not have been identified. (ii) Remedy to complain about the alleged ineffectiveness of the investigation 60. The Government submitted that Article 3 of the Convention did not require a judicial remedy and that the possibility to challenge a decision to discontinue an investigation before the general public prosecutor under Article 172 § 1 of the CCP had fulfilled the requirements stemming from the Convention. Even though the general public prosecutor had been the superior of each public prosecutor in the respective court district, he or she had been provided with his or her own staff and therefore had been sufficiently independent from subordinate public prosecutors. 61. Moreover, the applicants had had judicial possibilities to challenge the effectiveness of the investigation at their disposal. Firstly proceedings to force criminal proceedings, a remedy they had also made use of. The Court of Appeal had adopted the most favourable interpretation of the law for the applicants, in accordance with which it could have ordered further investigations if the public prosecutor ’ s office had conducted an entirely inadequate investigation. As the court had found that this had not been the case and that the applicants had not shown that further enquiries would have been fruitful, the applicants ’ request had been declared inadmissible. The Government argued that the Court of Appeal ’ s assessment had been in line with the requirements for an effective investigation under Article 3 of the Convention. 62. Lastly, the applicants had also challenged the effectiveness of the investigation before the Constitutional Court. The Constitutional Court had directly referred to the jurisdiction of the Strasbourg Court regarding the obligation to investigate allegations of police violence and concluded that the investigation had been effective. Moreover, the Constitutional Court had also been competent to initiate or reopen an investigation. Under section 35 of the Constitutional Court Act, the Constitutional Court could have specified the method of execution and the competent authority to execute its decision, and under section 32 of the Constitutional Court Act it could have issued a preliminary injunction. Under section 95(2) of the Constitutional Court Act the court could also have set the public prosecutor ’ s decision to discontinue the investigation aside. The Constitutional Court had already done so in its judgment in the case 2 BvR 878/05. B. The Court ’ s assessment 1. Admissibility 63. The Court notes that the Government argued that the applicants had not lodged an application to force criminal proceedings in respect of the alleged suppression of evidence and video material. In that connection it observes that these proceedings would have concerned a different investigation. While the applicants unsuccessfully lodged an application to force criminal proceedings concerning the investigation into alleged police violence, they did not do so in respect of the investigation into alleged suppression of evidence. As the applicants ’ present application to the Court concerns the allegation of police violence the Court considers it unnecessary for the applicants ’ present complaint to have exhausted domestic remedies regarding a second, separate investigation. 64. Moreover, the Government raised the objection of non ‑ exhaustion regarding two of the applicants ’ arguments (see paragraph 5 3 above), because the applicants had not made these arguments in their constitutional complaint. The Court notes that it is not in dispute between the parties that the applicants challenged the effectiveness of the investigation before the Constitutional Court. Furthermore, the applicants referred in their constitutional complaint to the Court ’ s jurisdiction concerning States ’ obligations under the procedural head of Articles 2 and 3 of the Convention, pursuant to which investigations had to be prompt, thorough and independent. It also notices that the applicants described in detail the course and duration of the investigation and the subsequent court proceedings. Consequently, the Court finds that the applicants provided the Constitutional Court with all relevant information to assess the effectiveness of the investigation, which they challenged in their constitutional complaint. 65. Lastly, in so far as the Government raised the objection of non ‑ exhaustion in regards to the lack of a possibility to challenge the effectiveness of the investigation, the Court observes that the applicants complained under Articles 19 § 4 and 103 § 1 of the Basic Law that the Court of Appeal had not evaluated the effectiveness of the investigation and that it had not responded in detail to the several alleged flaws therein, as outlined in the applicants ’ application to force further enquiries. In the light of the applicants ’ submission to the Constitutional Court in the constitutional ‑ complaint proceedings the Court considers that the applicants raised this complaint explicitly and in substance. 66. Having regard to the above the Court holds that the application cannot be rejected for the applicants ’ failure to exhaust domestic remedies. It also finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and also not inadmissible on any other grounds. Therefore, the applicants ’ complaint under the substantive and procedural limbs of Article 3 must be declared admissible. 2. Merits (a) Substantive aspect of the complaint 67. The Court observes that it is confronted with a dispute over the exact events after the football match on 9 December 2007 and the acts that led to the applicants ’ injuries. 68. The Court reiterates that it is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first ‑ instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a “particularly thorough scrutiny”, even if certain domestic proceedings and investigations have already taken place (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 155, ECHR 2012, with further references). 69. In cases in which there are conflicting accounts of events, the Court is inevitably confronted with the same difficulties as those faced by any first-instance court when establishing the facts and must reach its decision on the basis of the evidence submitted by the parties. In the proceedings before it, there are no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII). While in general the Court has adopted the standard of proof “beyond reasonable doubt” in assessing evidence, according to its established case-law, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (ibid.). 70. It is to be reiterated that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio (he or she who alleges something must prove that allegation) (see El-Masri, cited above, § 152). Under certain circumstances the Court has borne in mind the difficulties associated with obtaining evidence and the fact that often little evidence can be submitted by the applicants in support of their applications (see Saydulkhanova v. Russia, no. 25521/10, § 56, 25 June 2015). In particular where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Bouyid, cited above, § 83, with further references). 71. These principles also apply to all cases in which a person is under the control of the police or a similar authority, such as an identity check in a police station (ibid., § 84). 72. Assessing the present case, the Court firstly notes that the applicants voluntarily attended the football match, but were involuntarily kept by the police in the stands for about fifteen minutes. However, the Court also notes that the blockade was maintained only by cordoning the exits off and that the supporters were still able to freely move within the stands themselves. In addition, the alleged police violence occured – according to the applicants – after the blockade was lifted and the applicants had left the stands. The Court therefore concludes that the applicants were not ‘ under the control of the police ’ – in the meaning of the Court ’ s jurisprudence (see Bouyid, cited above, §§ 83, 84) – and that the burden of proof could not be shifted to the Government. Consequently, it was for the applicants to substantiate their factual arguments by providing the Court with the necessary evidence. 73. The Court notes that the applicants submitted parts of the investigation file, including their and other witnesses ’ statements, medical certificates concerning their injuries and different press articles concerning the police operation at the football match. They also submitted their correspondence with the public prosecutor ’ s office and their appeals to the chief public prosecutor and the domestic courts. 74. The Court has previously emphasised the strong evidential value of medical certificates attesting evidence of ill-treatment and issued shortly after the alleged ill-treatment (see Bouyid, cited above, § 92). In that regard the Court observes that the first applicant ’ s medical certificate was issued the night after the football match and attested to a bleeding laceration 3 cm in length behind his right ear. The certificate also stated that according to the account of the patient, that is to say the first applicant, the laceration was caused by a strike with a truncheon. The second applicant ’ s medical certificate noted redness in his face, possibly stemming from pepper spray. However, that certificate was issued only on 21 January 2008 and based upon the second applicant ’ s account and pictures taken, according to him, after the football match. The Court considers that both certificates attest to possible consequences of ill-treatment, namely being beaten with a truncheon on the head and having pepper spray applied to the face from a close distance. However, while confirming the injuries, the certificates do not attest to the specific cause of the injuries. Moreover, the second applicant ’ s medical certificate was only issued six weeks after the alleged ill-treatment and was not based on an examination of the actual injuries. 75. Regarding the other documents submitted, the Court observes that some of the witnesses and the press reports described the police operation in terms similar to the accounts of the applicants. Furthermore, the accounts of the applicants before the police and before the Court were in essence the same. However, the applicants did not submit to the Court any witness statements or other evidence confirming their accounts and none of the persons interviewed in the domestic investigation witnessed the alleged acts against them. 76. Lastly, the Court notes that the second applicant reported the alleged police violence only on 21 January 2008 and filed a formal criminal complaint only on 7 March 2 008. The first applicant did not file his criminal complaint until 25 April 2008. 77. Having regard to the evidence before it, the Court acknowledges that some of the evidence confirms the applicants ’ accounts. In sum, however, it finds itself unable to establish beyond reasonable doubt that the first applicant was hit by a police officer with a truncheon on his head and that the second applicant had pepper spray doused in his face at close range and subsequently had been struck on his left upper arm with a truncheon by a police officer. 78. Accordingly, the Court finds that there has been no violation of Article 3 of the Convention under its substantive head. (b) Procedural aspect of the complaint ( i ) General principles 79. The Court has recently summarised its general principles regarding States ’ procedural obligation to effectively investigate allegations of police violence under Article 3 of the Convention in the case of Bouyid (cited above, §§ 115-23). While the principles relate to the manner of application of Article 3 to allegations of ill-treatment made by persons in detention or otherwise under the control of State agents they can be also transposed to cases concerning the use of force for crowd control purposes: “ 115. Those principles indicate that the general prohibition of torture and inhuman or degrading treatment or punishment by agents of the State in particular would be ineffective in practice if no procedure existed for the investigation of allegations of ill-treatment of persons held by them. 116. Thus, having regard to the general duty on the State under Article 1 of the Convention to ‘ secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention ’, the provisions of Article 3 require by implication that there should be some form of effective official investigation where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of, inter alia, the police or other similar authorities. 117. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws prohibiting torture and inhuman or degrading treatment or punishment in cases involving State agents or bodies, and to ensure their accountability for ill-treatment occurring under their responsibility. 118. Generally speaking, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence. 119. Whatever mode is employed, the authorities must act of their own motion. In addition, in order to be effective the investigation must be capable of leading to the identification and punishment of those responsible. It should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used force but also all the surrounding circumstances. 120. Although this is not an obligation of results to be achieved but of means to be employed, any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of the required standard of effectiveness. 121. A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. 122. The victim should be able to participate effectively in the investigation. 123. Lastly, the investigation must be thorough, which means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation. ” ( ii ) Application of these principles to the present case ( α ) Arguable claim 80. At the outset the Court notes that the parties ’ disagreement regarding the facts (see paragraphs 9-13 above) also affects the question of whether the applicants raised an “arguable claim” that they had been ill-treated by the police and thereby whether an effective official investigation had been required under Article 3 of the Convention. 81. While the Government argued that there had not been a credible allegation of police violence, the applicants submitted that, from the start, there had been sufficient indications of unjustified and excessive use of force by the police. The Court notes that the public prosecutor ’ s office had initiated an investigation into the police operation, which under Article 160 of the CCP presupposed a suspicion of a criminal offence. It also observes that in the first decision to discontinue the investigation the public prosecutor had held that the investigations had produced evidence that some police officers had used truncheons against spectators, including women and children, in a disproportionate way and without an official order or approval. However, the Court reiterates that it was unable to establish beyond reasonable doubt that the first applicant had been hit by a police officer with a truncheon on his head and that the second applicant had been doused with pepper spray in the face at close range and subsequently struck on his left upper arm with a truncheon by a police officer (see paragraphs 72 77 above). 82. In that regard the Court reiterates that the term “arguable claim” cannot be equated to finding a violation of Article 3 under its substantive head. An arguable claim only requires that there is a reasonable suspicion that applicants were ill-treated by the police or another national authority (compare Assenov and Others v. Bulgaria, 28 October 1998, §§ 101 and 1 02, Reports of Judgments and Decisions 1998 ‑ VIII, and Đurđević v. Croatia, no. 52442/09, § 86, ECHR 2011 (extracts)). Given the statements made by the applicants to the police – which, it must be stressed, were made with a certain delay and were not free of contradictions –, the press reports that corroborated their accounts and the medical certificates confirming the applicants ’ injuries, the Court finds that there was an arguable claim of ill-treatment by the police which had to be effectively investigated by an independent national authority. 83. The Court acknowledges the difficulties which may be encountered in policing large groups of people during mass events where the police have not only the duty of maintaining public order and protecting the public, but also of maintaining confidence in their adherence to the rule of law. (β ) Adequacy of the investigation 84. Concerning the adequacy of the investigation, the Court observes, at the outset, that the public prosecutor ’ s office was, according to the Constitutional Court, “master of the proceedings” (see paragraph 26 above) and responsible for the investigation of criminal offences as well as the bringing of charges. However, based on the documents in its possession the Court finds that, in particular during the first phase of the investigation, before the first decision to discontinue, the investigation had been, in fact, primarily conducted by the police and that the public prosecutor only had a supervisory role. 85. As regards the second phase of the investigation, the investigating unit was again drawn from the Munich police and was again under the supervision of the public prosecutor. Where investigations are for all practical purposes conducted by the police, the supervision of the police by an independent authority has not been found to provide a sufficient safeguard (see Kelly and Others v. the United Kingdom, no. 30054/96, § 114, 4 May 2001; Kummer, cited above, § 87, and Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 337, ECHR 2007 ‑ II, with further references). Therefore, the Court has to assess whether the unit investigating the alleged police violence was sufficiently independent from the officers of the riot control unit whose operation was under investigation. In that regard the Court notes that the investigation was not conducted by a separate police force but by a division of the Munich police which specialised in offences perpetrated by public officials under the supervision of the public prosecutor ’ s office. It also observes that the investigating officer was not a direct colleague of the officers of the riot control unit (contrast Ramsahai, cited above, §§ 335-37) and that the only link between these two divisions was their common Chief of Police and the fact that they belonged to the Munich police. While the Court considers it desirable that investigations into the use of force by the police, if possible, be conducted by independent and detached units (see, for example, Oğur v. Turkey [GC], no. 21594/93, § 91, ECHR 1999 ‑ III and Eremiášová and Pechová, cited above, §§ 135 ‑ 39), it finds no sufficient hierarchical, institutional or practical connection between the investigating division and the riot control unit which, by itself, would render the investigation unreliable or ineffective. 86. The Court further notes that on 20 October 2008 there had been an internal meeting concerning the investigation between the head of the investigation unit and different heads of divisions of the Munich police, including the platoon leaders of riot control units, which the competent public prosecutor did not attend (see paragraph 19 above). Where, as in the present case, the investigation is conducted by a unit of the same police force and only under the supervision of an independent authority, it is of increased importance that the manner in which it is conducted also gives an appearance of independence so as to preserve public confidence (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 123, 4 May 2001, Đurđević, cited above, § 89, Mihhailov v. Estonia, no. 64418/10, § 128, 30 August 2016). 87. As far as the promptness of the investigation is concerned, the Court has consistently emphasised that a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts ( Bouyid, cited above, § 133). In this respect, the Court observes that the Munich police commenced a preliminary investigation on 2 January 2008, after they had been alerted by press reports to allegations of police violence in the context of the football match on 9 December 2007. The investigation lasted for nineteen months and was eventually discontinued by the public prosecutor on 4 August 2009. Based on all the documents in its possession the Court detects no particularly long periods of inactivity in the conduct of the investigation. In sum, around forty witnesses were interviewed, video material was reviewed, medical certificates were examined, and further investigative steps were taken. The investigation, therefore, appears to have been adequately prompt and expedient. 88. In the context of the expedience of the investigation, the Court also observes that the applicants only lodged official complaints on 7 March and 25 April 2008. Consequently, their specific complaints could only be investigated after the respective dates. Moreover, the delay in lodging official complaints prevented the competent authorities to promptly order a forensic examination of the applicants ’ injuries and thereby contributed to the difficulties in the investigation. The Court would reiterate in that regard that a prompt forensic examination is crucial as signs of injury may often disappear rather quickly and certain injuries may heal within weeks or even a few days (see Rizvanov v. Azerbaijan, no. 31805/06, §§ 46 and 47, 17 April 2012). 89. Moreover, the Court notes that the applicants, who were assisted by a lawyer during the investigation, had access to the investigation file, were able to request certain investigative measures and were informed of the progress of the investigation. Even though not all the requested measures were implemented and the applicants were not involved in the meeting of 20 October 2008, the Court considers that they were able to effectively participate in the investigation. 90. As regards the investigative measures actually undertaken, the Court observes that the deployed police officers of the riot control unit did not wear any name tags or other individually identifying signs, but only identification numbers of the squad on the back of the helmets (see paragraph 7 above). 91. The Court reiterates that where the competent national authorities deploy masked police officers to maintain law and order or to make an arrest, those officers should be required to visibly display some distinctive insignia, such as a warrant number. The display of such insignia would ensure their anonymity, while enabling their identification and questioning in the event of challenges to the manner in which the operation was conducted (see Ataykaya v. Turkey, no. 50275/08, § 53, 22 July 2014, with further references; Özalp Ulusoy v. Turkey, no. 9049/06, § 54, 4 June 2013; and the CPT recommendation in paragraph 43 above ). The consequent inability of eyewitnesses and victims to identify officers alleged to have committed ill-treatment can lead to virtual impunity for a certain category of police officers (compare Atakaya, cited above, § 53, and Hristovi v. Bulgaria, no. 42697/05, §§ 92 and 93, 11 October 2011). 92. In the Court ’ s previous cases concerning the effectiveness of investigations against masked police officers the acts of ill ‑ treatment had been clearly attributable to one of the deployed officers. In the present case, however, the Court was, based on the evidence before it, unable to reach a different conclusion than the national authorities and establish that the applicants ’ injuries were a direct result of the conduct of one or more of the deployed police officers. Therefore, the deployment of helmeted officers with no identifying individual insignia could not – by itself – render the subsequent investigation ineffective (contrast, Hristovi, cited above, § 93). 93. However, in the absence of such identifying insignia for helmeted officers, the investigative measures open to the authorities to establish the identities of the persons responsible for the alleged use of excessive force causing ill-treatment became increasingly important. 94. According to the Court ’ s well-established case-law, the authorities must take all reasonable steps available to them to secure the evidence concerning the incident at issue. The investigation ’ s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation ’ s ability to establish the circumstances of the case and the identity of those responsible. Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation ’ s effectiveness depend on the circumstances of the particular case, and it must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Armani da Silva v. the United Kingdom [GC], no. 5878/08, §§ 233 and 234, ECHR 2016, with further references ). 95. Securing and analysing the original video material, recorded by the deployed riot units constituted one of the obvious lines of inquiry into the circumstances surrounding the break-out of violence and the alleged disproportionate use of force first reported in the press and then complained of by the applicants. The Court considers that the treatment, securing and analysis of the original video material was a crucial investigative measure which was capable of shedding light on what occurred, whether the alleged force used by the police was disproportionate and specifically whether the applicants had in fact been beaten and doused with pepper spray by police officers in circumstances which did not warrant such an intervention (see, as regards the importance of video evidence in an investigation, Ciorap v. the Republic of Moldova (no 5), no. 7232/07, §§ 66-67). In that regard, it observes that the investigating unit had only been provided with excerpts of the original video material, which it analysed together with other videos of the football match and of the subsequent events found online. However, the Government did not clearly explain whether the entire video material was analysed by an independent unit, why only excerpts of the video material were provided to the investigating unit, or when the video material was deleted and by whom. 96. To the extent that the Government referred to the procedure according to which the entire recorded video material was reviewed by the respective video officer (see paragraph 16 above) as standard, the Court concludes that the video officers cannot be considered independent in the context of investigations into allegations of police violence by members of his or her own squad. 97. In addition, the timing of deletion of parts of the video material was of particular importance, as the Court notes that from 15 December 2007 onwards, according to press reports relating to the events on match day, the Munich police had been aware that allegations of police violence existed. Furthermore, it is clear from the material in the case file that by the latest on 18 December 2007 the Munich police envisaged an investigation into the conduct of the deployed riot control unit (see paragraph 14 above). 98. The Court accepts that the failure to secure all the video footage and to have it analysed by independent investigating units could, in principle, be counter-balanced by other investigative measures. As indicated previously, the effectiveness of a given investigation will depend on the circumstances of a particular case and must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see paragraph 94 above). One such measure could have been the questioning of more of the deployed riot police officers. The Court acknowledges that around forty witnesses were questioned and that these included the squad leaders of the deployed riot control units. It nevertheless observes that not all officers deployed in the area where the applicants had allegedly been ill ‑ treated were interviewed. Moreover, the video officers were interviewed only after the investigation had been reopened on 14 October 2008, and no efforts were undertaken to identify and question the paramedic who had allegedly treated the first applicant at the stadium. 99. Having regard to the above considerations, the Court concludes that the deployment of helmeted officers with no identifying individual insignia and the consequent inability of eyewitnesses and victims to directly identify the officers alleged to have committed the ill ‑ treatment complained of had the capacity to hamper the effectiveness of the investigation from the outset. Such a situation required particular investigative efforts by the investigating authorities to establish the cause of the victims ’ injuries, the identities of the persons responsible, whether police officers used force and, if so, whether such force was proportionate to the security situation which confronted the deployed units. The Court reiterates that any deficiency in an investigation which undermines its ability to establish the facts or the identity of persons responsible will risk falling foul of the standard of effectiveness required under the procedural limb of Article 3 (see Hristovi, cited above, § 86). In the present case, it considers that, for example, the securing and analysis of the original video footage by an independent authority or interviewing other members of the deployed riot control units or other witnesses, such as the paramedic who had allegedly treated the first applicant at the stadium, could possibly have clarified the events after the football match of 9 December 2007 in Munich, the cause of the applicants ’ injuries and the alleged ill ‑ treatment by police officers. Since these obvious lines of inquiry were not comprehensively followed, the Court finds that the lack of insignia of helmeted police officers and any difficulties resulting from it were not sufficiently counter-balanced during the subsequent investigation. (γ) Review of the prosecutorial decision 100. In so far as the applicants complained about the lack of an effective judicial remedy to complain about the alleged ineffectiveness of an investigation, the Court has already held that the procedural obligation in Article 2 does not necessarily require a judicial review of investigative decisions as such (see Armani da Silva, cited above, §§ 278 and 279, with further references). The Court also established that in at least twelve member States, the decision of a prosecutor not to prosecute could only be contested before a hierarchical superior (ibid, § 279). 101. The Government indicated one non-judicial and two judicial remedies open to the applicants to challenge the effectiveness of the investigation, as protected under Article 3 of the Convention. Upon the applicants ’ complaint about the decision of the public prosecutor to discontinue the investigation under Article 172 § 1 of the CCP (see paragraph 36 above) the Munich general public prosecutor, in its decision of 3 February 2011, reviewed the decision of the public prosecutor and the underlying investigation in detail and responded to the specific complaints submitted by the applicants. However, the Court notes that the Munich general public prosecutor was the superior of the Munich public prosecutor ’ s office. 102. As far as judicial remedies are concerned, the Court notes that the applicants ’ application to force further enquiries was declared inadmissible, since the Court of Appeal found that these proceedings were not supposed to identify the accused or replace investigations. Nonetheless, upon the applicants ’ constitutional complaint, the Constitutional Court assessed the investigation in detail and referred to the Court ’ s case-law concerning the procedural obligation of Article 2 and 3 of the Convention. Moreover, based on the case-law of the Constitutional Court and the relevant provisions of the Constitutional Court Act (see paragraphs 38-41 above), the Constitutional Court appears, in principle, to be able to set aside a decision to discontinue a criminal investigation and to initiate or reopen an investigation. Therefore, the applicants had at their disposal a remedy to challenge the ineffectiveness of an investigation. ( δ ) Conclusion 103. After having assessed all relevant elements and circumstances of the investigation in this particular case, the Court concludes that there has not been an effective investigation, since the deployment of helmeted police officers without identifying insignia and any difficulties for the investigation resulting from it were not sufficiently counter-balanced by thorough investigative measures. Consequently, the Court holds that there has been a violation of Article 3 of the Convention under its procedural head. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 104. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 105. The applicants claimed the sum of 3,500 euros (EUR) each in respect of non-pecuniary damage. 106. The Government considered the amount of EUR 3,500 excessive, but left it to the discretion of the Court. 107. For the Court, the applicants undeniably sustained non ‑ pecuniary damage on account of the violation of the procedural head of Article 3 of the Convention of which they were the victims. Making its assessment on an equitable basis as required by Article 41 of the Convention, it awards each of them EUR 2, 0 00 in respect of non-pecuniary damage. B. Costs and expenses 108. The applicants also claimed the sum of EUR 2,588.91 each in respect of costs and expenses for the domestic proceedings and EUR 5,176.50 each for costs and expenses relating to the proceedings before the Court. The claimed costs and expenses before the Court consisted of EUR 3,986.50 for Mr Noli and EUR 1,190 for Ms Luczak ’ s contribution to the applicants ’ reply to the Government ’ s observations. 109. The Government did not object to the amount claimed in respect to expenses for the domestic proceedings, but regarded the costs and expenses relating to the proceedings before the Court excessive. It considered attorney fees, comparable to the ones occurred before the Federal Constitutional Court, in the amount of EUR 614 sufficient and reasonable. 110. According to the Court ’ s established case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. Having regard to the documents in its possession and the above criteria, the Court finds it reasonable to award each applicant EUR 2,588.91 in respect of costs and expenses for the domestic proceedings and EUR 3,986.50 for costs and expenses relating to the proceedings before the Court. C. Default interest 111. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in respect of the applicants’ treatment by the police, being unable to establish beyond reasonable doubt that the events had happened as described by the applicants. It held, however, that there had been a violation of Article 3 of the Convention in respect of the investigation into the applicants’ allegations. In that regard, the Court observed in particular that the helmeted police officers of the riot control units had not worn any name tags or other individually identifying signs, but only identification numbers on the back of their helmets. Therefore, other measures to establish the identities of the persons responsible for the alleged ill-treatment had become especially important. However, the difficulties resulting from the lack of identifying insignia had not been sufficiently counter-balanced by other investigative measures. Notably, only excerpts of the video material recorded by the riot units had been provided to the investigating unit and some potentially relevant witnesses had not been identified and questioned. |
730 | Exposure to environmental hazards | II. RELEVANT DOMESTIC LAW AND INTERNATIONAL STANDARDS A. Domestic law and practice relating to civil and constitutional remedies 1. Civil remedies 22. The relevant provisions of the Civil Code, Chapter 16 of the Laws of Malta, in respect of actions for damages, read: Article 1031 “Every person, however, shall be liable for the damage which occurs through his fault.” Article 1032 “(1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias. (2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree.” Article 1033 “Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom.” Article 1045 “(1) The damage which is to be made good by the person responsible in accordance with the foregoing provisions shall consist in the actual loss which the act shall have directly caused to the injured party, in the expenses which the latter may have been compelled to incur in consequence of the damage, in the loss of actual wages or other earnings, and in the loss of future earnings arising from any permanent incapacity, total or partial, which the act may have caused. (2) The sum to be awarded in respect of such incapacity shall be assessed by the court, having regard to the circumstances of the case, and, particularly, to the nature and degree of incapacity caused, and to the condition of the injured party.” Article 1046 “Where in consequence of the act giving rise to damages death ensues, the court may, in addition to any actual loss and expenses incurred, award to the heirs of the deceased person damages, as in the case of permanent total incapacity, in accordance with the provisions of the last preceding article.” 2. Constitutional remedies 23. Article 46 of the Constitution of Malta, in so far as relevant, reads: “ (1) ... any person who alleges that any of the provisions of articles 33 to 45 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress. (2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1) of this article, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said articles 33 to 45 (inclusive) to the protection of which the person concerned is entitled: Provided that the Court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law. (4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court. ” 24. Similarly, Article 4 of the European Convention Act, Chapter 319 of the laws of Malta, provides: “(1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress. (2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of subarticle (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled: Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this subarticle in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law. (4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.” 25. Maltese case-law relating to the examination of a case by the constitutional jurisdictions was summarised in the case of Dr Mario Vella vs Joseph Bannister nomine, Constitutional Court judgment of 7 March 1994. These guiding principles were reiterated in several other judgments including Mourad Mabrouk vs the Minister for Justice and Home Affairs and the Principal Immigration Officer, judgment of the Civil Court (First Hall) in its constitutional jurisdiction of 4 February 2009. The relevant guiding principles read as follows: “a. As a general principle, when it is clear that there are available ordinary remedies enabling an applicant to obtain redress for the damage complained of, such ordinary remedies must be undertaken and constitutional proceedings should be instituted only after such ordinary remedies are exhausted or if they were not available. b. Unless there are grave and serious reasons related to unlawfulness, justice or manifest error, the Constitutional Court will not disturb the exercise of discretion made by the first-instance court, as conferred on it by Article 46 (2) of the Constitution. c. Each case has its own particular circumstances. d. The fact that an applicant has failed to pursue an available remedy does not mean that the court [of constitutional jurisdiction ] must decline to exercise its jurisdiction if that possible remedy could redress the applicant ’ s complaint only in part. e. Where an applicant has failed to exhaust an ordinary remedy, if the interference of another person has contributed to this non exhaustion, then it would not be desirable for the court [ with constitutional jurisdiction ] to refrain from hearing the case. f. When the first-instance court exercises its discretion and refuses to take cognisance of a case without having examined the relevant subject matter in respect of which that discretion had to be exercised, the court of second instance should put aside that discretion.” 26. In the judgment of the Constitutional Court in the names Philip Spiteri vs Sammy Meilaq nomine of 8 March 1995 it was further held that: “When the object of the action is complex - and concerns issues which have a remedy under some other law, and other issues that can only be redressed by the Constitutional Court – the latter action should prevail.” The same was reiterated in the more recent judgment of the Civil Court (First Hall) in its constitutional jurisdiction of 5 June 2014 - still subject to appeal - in the name of Judge Carmelo Sive Lino Farrugia Sacco vs The Honourable Prime Minister, the Attorney General and the Commission for the Administration of Justice. In that same judgment the court also held that: “ From an accurate examination of the proviso [to Article 46 (2) of the Constitution], it does not result that the legislator intended to establish as an absolute principle of Maltese constitutional law that before an individual seeks redress before the constitutional jurisdictions, he or she must always, peremptorily, exhaust all the available ordinary remedies, including those which are not reasonably expected to be effective and accessible.” B. Domestic law and case-law relating to asbestos 1. Legislation 27. The Dock Safety Regulations ( Subsidiary Legislation 424.03 ), were enacted in 1953 and amended in 1965, 1966, 1977, 1991, 1999 and 2009. The regulations make no mention of asbestos or occupational hazards caused by carcinogenic substances and agents. 28. The Work Places (Health, Safety and Welfare) Regulations ( Subsidiary Legislation 424.09 ) entered into force on 9 February 1987. Part III concerns the prevention and control of occupational diseases and reads as follows: Regulation 16 “(1) No person may import or sell any chemical or material which is toxic, and no employer may use or suffer to be used any such chemical or material in any work place under his charge, without in either case the approval of the Superintendent [of Public Health]. (2) In granting such approval as referred to in sub regulation (1), the Superintendent may impose any conditions as he may deem fit in the interest of public health.” Regulation 17 “(1) It shall be the duty of the employer in so far as is reasonably practicable or possible, or when so directed by the Sanitary Authority, to substitute a harmful substance, process or technique at a place of work by a less harmful substance, process or technique.” (2) Without prejudice to the generality of subregulation (1), the following rules shall apply: (a) sandstone grinding wheels shall be substituted by carbonrundum grinding wheels; (b) benzene, unless authorised by the Superintendent, shall be substituted by a less toxic solvent; (c) paints, varnishes, mastics, glues, adhesives and inks shall not contain benzene; (d) white lead and sulphate of lead and products containing these pigments or other lead compounds shall not be used in the internal paintings of buildings or of articles in buildings, if the dry film of the resulting paint will contain more than 2500 parts per one million parts of metallic lead; (e) white or yellow phosphorus shall not be used in the manufacture of matches; (f) sand in sand-blasting shall be substituted by steel-shot or grit; (g) polychlorinated biphenyls shall not be used or added to any oil, fluid or material.” Regulation 18 “(1) It shall be the duty of the employer to make arrangements when so considered necessary by the Sanitary Authority and to the satisfaction of the said Authority, so that the atmosphere of work-rooms in which potentially dangerous or obnoxious substances are manufactured, handled or used, is tested periodically. (2) Such tests are to be carried out at sufficiently frequent intervals to ensure that toxic or irritating dusts, fumes, gases, fibres, mists or vapours are not present in quantities which, in the opinion of the Sanitary Authority, are liable to injure health, and to ensure that an atmosphere which is fit for respiration is maintained. (3) Work in, or entry into any place where there is reason to suspect that the atmosphere is toxic, poisonous, asphyxiating or otherwise dangerous to health, shall not be carried out until the atmosphere is suitably tested and found free from any danger to health. (4) The employer shall likewise ensure periodical testing of the working environment where a potential hazard exists for heat, noise and other physical agents. (5) All tests referred to in this regulation shall be conducted by trained personnel and, where possible, supervised by qualified personnel who possess experience in occupational health or hygiene.” Regulation 19 “(1) It shall be the duty of the employer to ensure that provisions are made for the storage under safe conditions of substances dangerous to health. (2) Without prejudice to the generality of this regulation such provisions should include the use of receptacles adequate to the storage of the dangerous substance, the safe storage of receptacles, their proper labelling with a danger symbol, their proper handling and where necessary an indication of the nature of the risk, the name of the substance or an indication to identify it and, as far as practicable, the essential instructions giving details of the first aid that should be administered if the substance should cause bodily harm or injury. (3) Where any risk from gases exists, cylinders containing such gases should be stored in well ventilated places as far as possible from the place of work.” Regulation 20 “It shall be the duty of the employer to inform forthwith the Superintendent of the occurrence in any of his employees of any occupational disease or incidence as are required to be notified by a medical practitioner under the Health Care Professions Act.” 29. The same regulations provided for notification of accidents connected to the place of work, and in so far as relevant the relevant provisions read as follows: Regulation 22 “ (1) For the purposes of these regulations any accident arising out of or in connection with work which results either - (a ) in the death of or a major injury to any person; ... shall be a notifiable accident and as such shall be reported to the Director [of Labour ]. (2) ( a ) Where the notifiable accident results in the death or a major injury to a person, the employer shall - ( i ) notify forthwith the Director or his representative by the quickest practicable means; and (ii) within seven days from the date of the accident send written notice of the accident to the Director; and (b) where the notifiable accident falls under subregulation (1)(b), the employer shall inform the Director in writing or by other suitable means, within seven days from the date of the accident. Regulations 23 “ There shall be kept in every work place or in such place outside the work place as may be approved by the Director and Superintendent a register, called the general register, and there shall be entered in or attached to that register: (a) the prescribed particulars as to every case of industrial accident and industrial disease occurring at the work place of which notice is required to be sent to the Director and the Superintendent;” Regulation 24 “ The general register and every other register or record kept in pursuance of these regulations shall be preserved and shall be kept available for inspection by any officer for two years after the date of the last entry in the register or record. ” 30. These regulations also provided for their enforcement and for penalties in the event that they were not complied with. 31. Further emphasis was placed on the duties of employers in the Factories (Health Safety and Welfare) Regulations 1986 which entered into force in 1987 and eventually became part of the General Provisions for Health and Safety at Work Places Regulations, which were amended in 1996, 2002 and 2003. Article 49 of the 1986 text, in its most relevant part read as follows: “ (1) Saving any other provisions of these regulations every employer shall take all practicable steps to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. (2) Every employer shall take all practicable steps to ascertain the hazards, if any, connected with a trade process or substance.” 32. In 1994, a prohibition on the importation of asbestos fibres came into effect by means of subsidiary legislation (S.L. 3 7.11) to the Customs Ordinance. 33. On 28 June 2002 the Prevention and Reduction of Environmental Pollution by Asbestos Regulations (S.L 504.30, subsidiary legislation to the Environment and Developing Planning Act ) came into force, containing in substance the provisions of the Council Directive 87/217/EEC of 19 March 1987 on the prevention and reduction of environmental pollution by asbestos. 34. Finally, Legal Notices 122 and 123 of 2003 enacted, respectively, the Protection of Workers from the Risks related to Exposure to Carcinogens or Mutagens at Work Regulations and the Protection of Workers from the Risks related to Exposure to Asbestos at Work Regulations which, like the regulations mentioned in paragraph 31 above, constitute subsidiary legislation under the Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta. 2. Case - law 35. In the case Mary Pellicano proprio et nomine vs Francis Spiteri nomine, Commercial Court judgments of 30 August 1989 and 27 June 1990 (see paragraph 10 above), the court established the responsibility of Malta Drydocks for the death of Paul Pellicano and awarded damages consisting of lucrum cessans and damnum emergens as provided by Maltese law. It found that the applicant had worked at the dock yard for decades until his death as a result of asbestosis. The applicant had been employed at the time when blue asbestos was still used at the ship repair yard and where the only precautionary measure taken was the use of masks, which in any case were considered of inadequate quality by the court-appointed experts. The court shared the conclusions of the experts who took the view that certain precautions had been implemented but they did not take sufficient account of the state of scientific knowledge about the subject matter at the relevant time. More specifically, the use of dangerous asbestos had remained the norm, the ventilation system was old and inadequate, the masks were inefficient, and other shortcomings had been apparent. 36. In Godfrey Buhagiar vs Malta Shipbuilding Company Limited ( another state-owned enterprise which in 2003 merged with the MDC to become Malta Shipyards Ltd. ), judgment of the First Hall (Civil Court) of 11 October 2001, it was held that the fact that an employee had consented to work in a dangerous environment did not imply acceptance of responsibility for any harm which he might suffer. Therefore, if an employee continues to work despite the fact that the employer has failed to provide a safe working environment, the employer cannot plead the employee ’ s consent as a defence. C. International standards 37. Malta became a member of the International Labour Organisation (“ILO”) on 4 January 1965 and of the World Health Organisation (“WHO”) on 1 February 1965. 38. According to the WHO website, all forms of asbestos are carcinogenic to humans and may cause mesothelioma and cancers of the lung, larynx and ovary. Asbestos exposure is also responsible for other diseases, such as asbestosis (fibrosis of the lungs), pleural plaques, thickening and effusions. According to the most recent WHO estimates, more than 107, 000 people die each year from asbestos-related lung cancer, mesothelioma and asbestosis resulting from exposure at work. 39. In 1974 the General Conference of the International Labour Organisation adopted the Occupational Cancer Recommendation ( 1974 - R147 ), concerning the prevention and control of occupational hazards caused by carcinogenic substances and agents, and in 1986 it adopted the Asbestos Recommendation, R172, concerning safety in the use of asbestos. 40. The ensuing conventions, namely the ILO Convention concerning Safety in the Use of Asbestos (C 162 - the 1986 Asbestos Convention) and the ILO Convention concerning Prevention and Control of Occupational Hazards caused by Carcinogenic Substances and Agents (C 139 - Occupational Cancer Convention, 1974), have not been ratified by Malta. 41. Most European Union (“EU”) Directives on the matter such as the EU Directive on the protection of workers from the risks related to exposure to asbestos at work (83/477/EEC, amended in March 2003), became applicable to Malta only when it joined the EU in 2004 (see also paragraph 33 above). D. Other relevant legislation 42. The relevant provisions of the Department of Health (Constitution) Ordinance) Chapter 94 of the Laws of Malta, as at the time of the present case (and prior to its repeal in 2013) read as follows: “4. The Head of the Department of Health shall be the Chief Government Medical Officer who shall also be ex officio Superintendent of Public Health. 16. The Chief Government Medical Officer shall be the chief adviser to the Government on any matter relating to the public health or relating to or in connection with the health services. 17. (1) It shall be the duty of the Principal Medical Officers to assist the Chief Government Medical Officer and the Minister in planning, direction, development and administration of the health services (2) The Principal Medical Officers shall moreover – (a) deal with international health matters and relative commitments; (b) propose and formulate any such legislative measures as may be necessary in relation to health services.” THE LAW I. JOINDER OF THE APPLICATIONS 43. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background. II. THE GOVERNMENT ’ S OBJECTION OF NON-EXHAUSTION OF DOMESTIC REMEDIES A. The parties ’ submissions 1. The Government 44. The Government submitted that the applicants had not exhausted domestic remedies in respect of the substantive complaints under Articles 2, 3 and 8 of the Convention, concerning the Government ’ s failure to protect the applicants rights ’ under those provisions. They had failed to institute an ordinary civil action, opting instead to attempt constitutional redress proceedings at the conclusion of which their claims had been dismissed for non-exhaustion of ordinary remedies. The Government noted that in their application the applicants had themselves cited the Pellicano case – which had been successful at the ordinary level – and the compensation award granted in that case by the Commercial Court. 45. The Government further relied on Aytekin v. Turkey (23 September 1998, § 84, Reports of Judgments and Decisions 1998 ‑ VII) in which, having taken into account the combination of the criminal, civil and administrative law remedies available, and in particular the prospects offered by the criminal proceedings for obtaining redress in respect of the death of the applicant ’ s husband, the Court had not exempted the applicant in that case from the requirement to exhaust such remedies. The Government also made reference to the case of John Sammut and Visa Investments Limited v. Malta (( dec. ), no. 27023/03, 28 June 2005), in which the Court had held that an action in tort could have resulted in an award of civil damages and that the aggregate of remedies could have redressed the applicants ’ second grievance. 46. Referring to Articles 1030-1033 of the Civil Code concerning an action in tort, the Government submitted that, like any other person, they could, through their representatives, be held liable for damages. Indeed the State had on numerous occasions been held liable for the payment of damages by the domestic courts (various examples were submitted to the Court). The Government referred in particular to the case of Carmena Fenech et vs Chairmen of the Malta Drydocks noe et (Court of Appeal, 3 December 2010), which concerned asbestos exposure and where the Government had been ordered to pay approximately EUR 103,000 in damages. 47. The Government conceded that – like any employer – they were obliged to provide a safe working environment and noted that they had been sued at various times for allegedly failing to provide such an environment. They cited Francis Busuttil vs Sammy Meilaq nomine (First Hall, Civil Court, 9 December 2002) and Gatt vs Chairman Malta Drydocks (sic.) (First Hall, Civil Court, 9 December 2002), in which the courts had found Malta Drydocks liable for damages because it had failed to provide a safe working environment and had been negligent in the maintenance of tools, thereby causing an accident that had resulted in the claimants ’ permanent disability. Similarly, in a comparable case, the State - owned airline, Air Malta, had been held liable for damages. Indeed, domestic courts had found the Government liable for damages when the governmental act complained of constituted a breach of duty which was classified either as a negligent act or as a failure to carry out duties properly. Moreover, in Godfrey Buhagiar vs Malta Shipbuilding Company Limited (11 October 2011) the domestic courts had held that the fact that an employee consented to work in a dangerous environment did not mean that the employee accepted responsibility for any harm which he might suffer, with the result that the employer could therefore not raise the plea that the employee accepted such working conditions. 48. As to the applicants ’ claim that compensation for non-pecuniary damage could not be awarded in an ordinary action, referring to Zavoloka v. Latvia ( cited above ) the Government noted that in that case the Court had found that there was no absolute obligation to award such damages in circumstances such as those in that case. Moreover, while it was true that the law did not provide for compensation for non-pecuniary damage, known as “moral damage” in the domestic context (except for a few specific circumstances), and that such damages were not awarded in actions for tort, the way compensation was calculated allowed for the inclusion of non ‑ pecuniary damage, although this was not mentioned. One such example was awarding loss of future earnings, based on a loss of opportunities, which in the Government ’ s view was a veiled type of “moral damage”, that is to say, non-pecuniary damage as understood in the Convention case-law. Moreover, the Government considered that civil law did not prohibit such damage and cited two examples ( Dr J Pace noe vs The Prime Minister, Civil Court (First Hall), 1 June 2012, and Mario Gerada vs The Prime Minister, Civil Court (First Hall), 14 November 2012) in which the applicants had been awarded compensation for “moral damage” in cases involving breach of contract and unfair dismissal respectively. 2. The applicants 49. The applicants contended that an ordinary civil action against the Government as employer for material damage would not have been capable of addressing the multiple issues arising from the breaches of Articles 2, 3 and 8. Accepting that the Government could, like private individuals, be found liable in a tort action, the applicants submitted that an ordinary action of that nature could not have established the State ’ s responsibility in line with Convention standards reflected in the Constitution. It followed that their complaints could therefore only be raised before the courts with constitutional jurisdiction as established by Article 46 of the Constitution (see “ Relevant domestic law ” above). 50. Moreover, they noted that according to domestic case-law, in instances where the merits of a case were complex and had aspects which fell under both ordinary and constitutional law, the constitutional action was to prevail ( Anthony Mifsud vs Superintendent Carmelo Bonello et, Constitutional Court, 18 September 2009). 51. The applicants noted that they were seeking damages arising from death and grievous bodily harm which were not the result of normal torts such as a traffic accidents but which were a result of the Government ’ s failure to fulfil their positive obligations under the Convention, namely to safeguard a person ’ s life, to investigate properly any death or harm for which the State was responsible, to provide information about any risk to life or health, and to identify the persons responsible for the violation. It followed that they were also entitled to compensation for non-pecuniary damage. 52. An ordinary civil action in tort could only provide for compensation for pecuniary damage, namely damnum emergens and lucrum cessans, the expressly limited heads of damage provided for by Maltese law. In fact, compensation for non-pecuniary damage was not provided for in law, as shown by decades of case-law where judges had repeatedly held that no compensation for non-pecuniary damage could be awarded. Moreover, proposals had recently been made in Parliament to make provision for compensation for non-pecuniary damage in certain cases – proposals which would be pointless if the Government ’ s contention that such damage were not precluded were true. Moreover, an occasional lapse by a good-hearted judge extending the scope of pecuniary damage could hardly be considered the right way of dealing with human rights violations. In the applicants ’ view the only available remedy was constitutional redress proceedings, which they had unsuccessfully instituted. 53. Furthermore, the ineffectiveness of such an ordinary remedy was evident in so far as the law (Article 1032 of the Civil Code) provided that no one was to be found liable in the absence of any express legal provision. Indeed, ordinary law did not provide for actions dealing with activities that breached Article 8 of the Convention – a provision which the applicants had also relied on and which, moreover, did not correspond to any constitutionally protected right in Malta. 54. The applicants argued that the Constitutional Court had dismissed their claims on the grounds of failure to use a remedy that was ineffective. It had, moreover, found that only if the applicants still felt that the breaches of their rights had not been redressed by that remedy could they opt for constitutional redress proceedings. The applicants contended that, although part of their claim could have been addressed by the ordinary courts, the courts with constitutional jurisdiction were not precluded from addressing the case to its full extent. They submitted that in Carmena Fenech vs Chairman of the Malta Drydocks, (cited above) one of the cases relied on by the Government, the claimant ( who was the widow of a dry - docks employee who had succumbed to malignant mesothelioma ) had been awarded out - of - pocket damages and compensation for loss of future earnings in respect of her husband. Thus, if she had wished to claim any compensation for non-pecuniary damage, she would still have had to lodge another claim with the courts with constitutional jurisdiction. It followed that the applicants had rightly brought their claim before the only court that could have found that there had been a breach of their human rights and awarded the compensation for non-pecuniary damage sought. B. The Court ’ s assessment 1. General principles 55. The Court reiterates that the rule on exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before the Court to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering for their acts before an international body until they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. It thus represents an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI, and Handyside v the United Kingdom, 7 December 1976, § 48, Series A no. 24). 56. The only remedies which Article 35 § 1 requires to be exhausted are those which relate to the alleged breach and which are available and sufficient (see McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010), that is to say a remedy that offers the chance of redressing the alleged breach and is not a pure repetition of a remedy already exhausted (see Dreiblats v. Latvia ( dec. ), no. 8283/07, 4 June 2013). There is no requirement to use another remedy which has essentially the same objective (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999). However, noting the strong affinity between Article 35 § 1 and Article 13, the Court has ruled that if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see Čonka v. Belgium, no. 51564/99, § 75, ECHR 2002 ‑ I; Kudła, cited above, § 157; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001-V; and Rotaru v. Romania [GC], no. 28341/95 § 69, ECHR 2000 ‑ V). 57. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available both in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicants ’ complaints, and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government had in fact been used or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 94, 10 January 2012). 58. The Court emphasises that the application of the rule must, however, make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule on exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, § 34, Series A no. 200). It has further recognised that the rule on exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed, it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no. 40). This means – amongst other things – that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-68, Reports 1996 ‑ IV). 59. According to the Court ’ s case-law, in the event of a breach of Articles 2 and 3, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001-V; Keenan v. the United Kingdom, no. 27229/95, § 130, ECHR 2001-III; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 97-98, ECHR 2002-II and Ciorap v. Moldova (no. 2), no. 7481/06, §§ 24-25, 20 July 2010 ). The principle applies also where the violation arises from the alleged failure by the authorities to protect persons from the acts of others ( see Z and Others, cited above, § 109; and Kontrová v. Slovakia, no. 7510/04, §§ 63-65, 31 May 2007 ). 60. In appropriate cases, also when the violation relates solely to Article 8, the Court may still consider under Article 13 that, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress (see T.P. and K.M. v. the United Kingdom [GC], cited above, § 107 ). 2. Application to the present case 61. The Government appear to raise this objection on the basis of three arguments : firstly that the Convention did not provide for a right to compensation for non-pecuniary damage and that therefore an ordinary action in tort would have sufficed, but the applicants failed to pursue it; secondly, even assuming that there was a right to compensation for non ‑ pecuniary damage, the applicants could still have had a chance of obtaining it – subject to the good will of the judge – in ordinary tort proceedings, which the applicants did not institute; and thirdly, they appear to invoke the effectiveness of an aggregate of remedies, which the Court understands as comprising an ordinary action in tort which could have awarded compensation for pecuniary damage plus a subsequent constitutional redress action which could have awarded compensation for non-pecuniary damage. 62. As transpires from the general principles and the case-law of the Court already cited, in the circumstances of the present case concerning, inter alia, complaints under Articles 2 and 3, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress accessible to the applicants. The same must be held in respect of the complaint under Article 8 which in this specific case is closely connected to the said provisions. 63. As to the ordinary civil proceedings in the form of an action in tort, the Court has no doubts about the possibility of bringing such an action against the Government and about the prospects of success of such an action as also transpires from the case-law submitted. Nevertheless, the Court notes that an action in tort which is perfectly capable of awarding material/pecuniary damage does not in general provide for an award of non ‑ pecuniary damage (“moral damage” as understood in the Maltese context). While it is true that the Government submitted two recent examples of such damages being awarded, they were unable to identify a legal provision for awards of such non-pecuniary damage. Moreover, against a background of decades during which the domestic courts have consistently interpreted Article 1045 of the Civil Code (see paragraph 22 above) as excluding non ‑ pecuniary damage, and in the light of the fact that one of these two judgments (delivered by the same judge) has been appealed against by the Government and is still pending before the Court of Appeal, an ordinary civil claim for damages in tort cannot be considered to be a sufficiently certain remedy for the purposes of providing any non-pecuniary damage which may be due for such breaches (see, mutatis mutandis, Aden Ahmed v. Malta, no. 55352/12, § 59, 23 July 2013). The Court further notes that loss of opportunity, to which the Government referred, is a type of pecuniary, and not non-pecuniary, damage. Lastly, it does not appear that the ordinary court in such an action would have had the competence or authority to give any other form of redress relevant to their complaints. 64. In so far as the Government pleaded that there existed an aggregate of remedies which the applicants did not exhaust, it is true that the Court has sometimes found under certain conditions that an aggregate of remedies sufficed for the purposes of Article 13 in conjunction with Articles 2 and 3 ( see, for example, Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 338, ECHR 2011 (extracts) ). This concept generally refers to a number of remedies which can be taken up one after the other or in parallel and which cater for different aspects of redress, such as a civil remedy providing for compensation and a criminal action for the purposes of satisfying the procedural aspect of Articles 2 and 3 ( ibid. , § 337). The Court has also encountered the notion or system of applying for different heads of damages through different procedures and found no particular problem with such a system (see Dreiblats, cited above), both being available options. 65. Turning to the present case, the Court acknowledges that an action in tort could appropriately address the issue of pecuniary damage (see paragraphs 22 and 6 3 above). The Court also considers that the remedy provided by the courts exercising constitutional jurisdiction provides a forum guaranteeing due process of law and effective participation for the aggrieved individual. In such proceedings, courts exercising constitutional jurisdiction can take cognisance of the merits of the complaint, make findings of fact and order redress that is tailored to the nature and gravity of the violation. These courts can also make an award of compensation for non ‑ pecuniary damage and there is no limit as to the amount which can be awarded to an applicant for such a violation (see, mutatis mutandis, Gera de Petri Testaferrata Bonici Ghaxaq v. Malta, no. 26771/07, § 69, 5 April 2011, in relation to Article 1 of Protocol No. 1, and Zarb v. Malta, no. 16631/04, § 51, 4 July 2006, in relation to Article 6). The ensuing judicial decision will be binding on the defaulting authority and enforceable against it. The Court is therefore satisfied that the existing legal framework renders the constitutional remedy capable, in theory at least, of affording, inter alia, appropriate compensatory redress concerning both pecuniary and non-pecuniary damage. 66. The domestic system thus offers one legal avenue which would have provided solely for pecuniary damage and another one which allowed for a finding of a violation, provided for all heads of damage, and, moreover, could have afforded any other means of redress relevant to the complaints at issue. The Court observes that it does not transpire that in such cases national law necessarily requires that ordinary civil proceedings be undertaken as a sine qua non before the institution of constitutional redress proceedings, and neither has this been claimed by the Government. The same was in fact held recently by the Civil Court (First Hall) in its constitutional jurisdiction (see paragraph 26, in fine, above). The Constitutional Court ’ s decision, and, before that, the similar decision of the Civil Court (First Hall) in its constitutional jurisdiction, declining the exercise of its jurisdiction was therefore not mandatory under procedural rules, or in accordance with any well-established case-law to that effect, but rather was a matter of discretion, that is to say it was based on the judgment of the judges sitting on that bench, as provided for in the Constitution (see relevant domestic law). It follows that there is nothing legally incorrect about the rulings of the constitutional organs, and the use of an ordinary remedy before the constitutional redress proceedings is not only customary but also desirable in order to avoid burdening the constitutional jurisdictions unnecessarily with cases. It may be that such an aim would be better achieved if the ordinary courts had the power to award also non-pecuniary (“moral”) damage. However, even though in the Maltese legal system the ordinary remedy was limited in scope, it cannot be considered ineffective if followed by constitutional redress proceedings, and therefore the existence of an effective aggregate of remedies cannot be denied. 67. Nevertheless, in the present case the Court notes that the Constitutional Court ’ s decision seems to have been based on a very broad reading of the Court ’ s case-law. The Court notes that, in Zavoloka it held, solely, that there was no right to non-pecuniary damage in circumstances such as those of that specific case, where the applicant ’ s daughter had died as a result of a traffic accident due to the negligence of a third party and where no responsibility, whether direct or indirect, could be attributed to the authorities. 68. Furthermore, in connection with the specific circumstances of the present case, the Court notes that the applicants ( apart from the family of Mr Attard and Mr Dyer ) were found to have pleural plaques in their lungs, were experiencing physical difficulties and were prone to malignant mesothelioma ( as occurred in the case of the deceased Mr Attard ) and they were challenging the Government for having failed to protect them against such negative consequences. Mr Dyer although not affected to date was at risk of suffering the same fate. For the purpose of seeking redress, they were confronted with the two possibilities available under the Maltese legal order, namely ( i ) instituting an ordinary civil action which could only partly redress their grievances (and which could have taken years to decide – in the Pellicano case the action was commenced in 1980 and was only finally determined ten years later) followed by constitutional redress proceedings which could redress the remaining unsatisfied claims or (ii) instituting constitutional redress proceedings which could deal with the entirety of their requests for redress. It has not been submitted that their applications before the courts with constitutional jurisdiction had no prospects of success; these courts could have chosen to exercise otherwise their discretion and take cognisance of the case, instead of declining to do so. Indeed, the latter course of action would appear to have been the most appropriate approach even from the perspective of domestic case-law (see paragraphs 25 - 26 and 47 above ) and probably the only approach possible in the case of Mr Dyer. 69. Consequently, in the circumstances of the present case and particularly in the absence of any pre-existing mandatory legal requirements ensuing from law or well-established case-law requiring the institution of civil tort actions before recourse to the constitutional organs (in circumstances such as those of the present case), the Court considers that the applicants cannot be held to blame for pursuing one remedy instead of two. Moreover, such an action would have also served the interests of economy of proceedings given that – in any event – the applicants would have been bound to go before the constitutional organs to obtain the full range of redress which they claimed. 70. The Court also notes that in their applications before the constitutional jurisdictions the applicants concerned requested the court to quantify a fair amount of compensation for the breach of their rights, to liquidate such amount and to order that this pecuniary redress be paid individually to each applicant (see paragraph 14 above). The Court considers that this general wording used by the applicants does not specifically exclude, as the Constitutional Court seems to have held (see paragraph 17, in fine, above) non-pecuniary damage as understood in the Court ’ s case-law. On the contrary it must be taken as including both pecuniary ( “ material ” damage, consisting under domestic law of damnum emergens and lucrum cessans ) and non-pecuniary (“moral”) damage, the term ‘ pecuniary ’ used by the applicants meaning simply ‘ monetary ’ and therefore before the domestic courts the relevant applicants ’ request cannot be said to have been deficient. 71. In the specific circumstances of the case, the Court is therefore satisfied that the national judicial authorities were provided with the opportunity to remedy the alleged violations of the Convention but failed to do so. Consequently, from the Court ’ s perspective, the applicants ’ institution of constitutional proceedings sufficed in the present case for the purpose of exhaustion of domestic remedies in respect of the substantive complaints under Articles 2, 3 and 8. 72. The Government ’ s objection is therefore dismissed. III. ALLEGED VIOLATION OF ARTICLES 2 AND 8 OF THE CONVENTION 73. The applicants complained under Articles 2 and 8 of the Convention in respect of their exposure to asbestos (or that of their deceased relative in the case of application no. 62338/11) and of the Government ’ s failings in that respect. The relevant provisions read: Article 2 “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 74. The Government contested that argument. A. The substantive complaints 1. Admissibility (a) The parties ’ submissions as to the applicability of the provisions 75. The Government submitted that the medical certificates produced by the applicants did not establish a direct link between their medical complaints and the fact that they were employed in the shipbuilding or ship repair industry. The medical certificate in the case of Mr Attard stated that his death was “likely to be a result of asbestos exposure”. The same comment appeared on the other certificates. The Government further submitted that although chest X - rays were the most common tool for detecting asbestos-related diseases, they could not detect asbestos fibres in the lungs. 76. The Government contended that everyone was exposed to asbestos at some time during their life as low levels of asbestos are present in the air, water and soil. Relying on a factsheet of 5 January 2009 issued by the National Cancer Institute entitled “Asbestos Exposure and Cancer Risk”, the Government noted that the risks of developing an asbestos - related disease depended on various factors, including how much asbestos one was exposed to, the length of the exposure, the size, shape and chemical composition of the asbestos fibres, the source of the exposure, and individual risk factors such as smoking and pre-existing lung disease. Indeed the combination of smoking and asbestos exposure was particularly hazardous. However, exposure did not necessarily lead subsequently to lung disease. 77. They explained that if products containing asbestos were disturbed, tiny asbestos fibres were released into the air. When these were breathed in, they became trapped in the lungs and over time could accumulate and cause scarring and inflammation, which could affect breathing. It was rare for a cancer of the thin membranes that lined the chest and abdomen to develop from asbestos exposure and the more likely consequence was an increased risk of asbestosis, an inflammatory condition affecting the lungs and causing shortness of breath, coughing and lung damage, and other non-malignant lung and pleural disorders including pleural plaques (changes in the membrane surrounding the lung), pleural thickening and benign pleural effusions (abnormal collections of fluid between the thin layers of tissue lining the lungs and the wall of the chest cavity ). According to the Government, it was well known in the medical community that pleural plaques were not precursors to lung cancer. 78. The applicants considered that through negligence, recklessness and lack of commitment on the part of the authorities they were robbed of their life expectancy through an irrevocable process of pain and lethal illness. The Government ’ s responsibility was even more evident considering that those actions and/ or omissions had taken place at MDC, a Government ‑ controlled entity – that is to say, at the applicants ’ place of work. (b) The Court ’ s assessment 79. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of unjustified force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998-III, and Paul and Audrey Edwards, cited above, § 54). 80. This obligation is construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities which by their very nature are dangerous, such as the operation of waste-collection sites (see Öneryıldız v. Turkey [GC], no. 48939/99, §71, ECHR 2004 ‑ XII) or nuclear testing (see L.C.B. cited above, § 36) or cases concerning toxic emissions from a fertiliser factory (see Guerra and Others v. Italy, 19 February 1998, §§ 60 and 62, Reports 1998 ‑ I, although in this case the Court found that it was not necessary to examine the issue under Article 2, it having been examined under Article 8). 81. The Court considers that the same obligations may apply in cases, such as the present one, dealing with exposure to asbestos at a workplace which was run by a public corporation owned and controlled by the Government. 82. The Court reiterates that it has applied Article 2 both where an individual has died (see, for example, Öneryıldız, cited above) and where there was a serious risk of an ensuing death, even if the applicant was alive at the time of the application. Examples include cases where the physical integrity of an applicant was threatened by the action of a third party (see Osman v. the United Kingdom, 28 October 1998, §§ 115-122, Reports 1998 ‑ VIII) or as a result of a natural catastrophe which left no doubt as to the existence of a threat to the applicants ’ physical integrity (see Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 146, ECHR 2008 (extracts)). More particularly, the Court has repeatedly examined complaints under Article 2 from persons suffering from serious illnesses. Such cases include G.N. and Others v. Italy ( no. 43134/05, 1 December 2009 ) in which the applicants suffered from the potentially life - threatening disease hepatitis C; L.C.B. v. the United Kingdom ( cited above ), where the applicant suffered from leukaemia diminishing her chances of survival, Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, ECHR 2012 (extracts), concerning applicants suffering from different types of terminal cancer; Karchen and Others v. France ( ( dec. ), no. 5722/04, 4 March 2008) and Oyal v. Turkey ( no. 4864/05, 23 March 2010 ), in which the applicants had been infected with the HIV virus, which endangered their life; Nitecki v. Poland (( dec. ), no. 65653/01, 21 March 2002), in which the applicant suffered from amyotrophic lateral sclerosis; Gheorghe v. Romania (( dec. ), no. 19215/04, 22 September 2005), in which the applicant suffered from haemophilia; and De Santis and Olanda v. Italy ( ( dec. ), 35887/11, 9 July 2013 ) in which the applicant – who was severely disabled – suffered a cerebral haemorrhage as a consequence of an infection acquired in hospital. 83. The medical certification indicated that Mr Attard ’ s death was likely to be a result of asbestos exposure; malignant mesothelioma is known to be a rare cancer associated with asbestos exposure. The Court observes that it has not been contested or denied that Mr Attard worked at Malta Drydocks for more than a decade ( 1959-1974), during which time he was repeatedly exposed to asbestos. Neither has it been shown that Mr Attard could have been contaminated elsewhere or that he was affected by other factors that could have led to the disease. In these circumstances, and given that Mr Attard has died as a result of his cancer, the Court considers that Article 2 is applicable to the complaint brought by the applicants in application no. 62338/11 relating to the death of the said Mr Attard. 84. As to the remaining applicants who also worked at MDC, the documentation presented indicates that all but one applicant ( Mr Dyer) have respiratory problems and plaques in their lungs, together with some other complications related to exposure to asbestos, but have not to date been diagnosed with malignant mesothelioma. It can neither be said that their conditions constitute an inevitable precursor to the diagnosis of that disease, nor that their current conditions are of a life-threatening nature. It follows that Article 2 does not apply in their case and the complaint brought by the remaining applicants under the Article under examination is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4. 85. However, in the context of dangerous activities, the scope of the positive obligations under Article 2 of the Convention largely overlaps with that of those under Article 8 (see Öneryıldız, cited above, §§ 90 and 160). The latter provision has allowed complaints of this nature to be examined where the circumstances were not such as to engage Article 2, but clearly affected a person ’ s family and private life under Article 8 (see Lόpez Ostra v. Spain, 9 December 1994, Series A no. 303-C and Guerra and Others, cited above). The Court therefore considers it appropriate to examine the complaints in respect of the remaining applicants under Article 8, which is applicable in the present case (see also Roche v. the United Kingdom [GC], no. 32555/96, §§ 155-156, ECHR 2005 ‑ X). (c) Other admissibility issues 86. The Court notes that it has jurisdiction ratione temporis to deal with the complaints in so far as they relate to the period after 23 January 1967, when the Convention entered into force in respect of Malta. 87. The Court further notes that it has previously recognised the standing of the victim ’ s next-of-kin to submit an application where the victim had died or disappeared in circumstances which were alleged to engage the responsibility of the State giving rise to issues under Article 2 (see Çakıcı v. Turkey [GC], no. 23657/94, § 92, ECHR 1999 ‑ IV, and Bazorkina v. Russia ( dec. ), no. 69481/01, 15 September 2005), it follows that the applicants in application no. 62338/11 have victim status in respect of the complaint under Article 2. 88. Lastly, the Court notes that the relevant complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. 89. It follows that the substantive complaint under Article 2 in respect of the applicants in application no. 62338/11 and that under Article 8 in respect of the applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 must be declared admissible. 90. Given that the tests to be carried out under Articles 2 and 8 are similar (see Budayeva and Others, cited above, § 133), the Court will carry out its examination of the complaints under these Articles together. 2. Merits (a) The parties ’ submissions ( i ) The applicants 91. The applicants complained that the Government had failed to fulfil their positive obligations under the relevant Convention provisions. 92. The applicants submitted that the causal link between asbestos and respiratory disease had been documented as early as 1938 and that the causal link between mesothelioma and asbestos exposure had been conclusively established in the early 1960s. Information on the dangers of asbestos had been available since the 1950s and – given that it was members of the ILO who had raised awareness of the issue – the authorities should have known of the risks it posed to the health of employees, even more so following 1979 when the Government had been one of the parties to a lawsuit involving the subject matter (see paragraph 10 above). Nevertheless, the MDC employees had been neither informed about nor protected from the dangers of asbestos in any way and they had been assured that adequate ventilation and the wearing of cloth masks would protect them from it. The applicants claimed that these masks, made of flimsy disposable material, had provided insufficient protection, them being totally inadequate for use at their place of work or for the purposes of protection from asbestos. According to the applicants, the “adequate ventilation” could not be considered to have been sufficient either, as was clearly apparent from their medical tests, which had shown that they were suffering from asbestos ‑ related diseases. 93. The applicants pointed out that the Government had admitted that nothing had been done apart from the enactment of specific legislation in 2006. Neither had the Government demonstrated that they had a clear policy for removing asbestos, as had been shown by the fact that asbestos was currently still to be found at a site at their former place of work, in a disused tunnel which had been walled up. Furthermore, the applicants highlighted the fact that the Government ’ s refusal to ratify the Asbestos Convention only showed their lack of sensitivity to the grave dangers of asbestos. 94. In the applicants ’ view, the enactment of legislation without proper implementation, precautions and dissemination of information was not sufficient to exempt the State from its obligations. Moreover, there was no justification for the tardy legislative response. The applicants submitted a list (twenty-four pages long ) containing the titles of publications produced between 1912 and 1997 concerning the hazardous effects of asbestos. They claimed that most of these publications had been routinely available, as from the 1940s, to Maltese medical students (who had often also studied in Britain), let alone doctors and the Government. Nevertheless, legislative action only came to pass over fifty years later. Moreover, until the end of the century, asbestos - laden ships had freely entered the ship repair facilities and workers had been instructed to work on them. ( ii) The Government 95. The Government pointed out that until a few decades ago asbestos had been one of nature ’ s best raw materials, being widely used in the building, construction and shipbuilding industries to insulate boilers, steam pipes and hot water pipes. After it was established that it probably caused latent effects on the lungs of those who came into contact with it, there was initially a slow reaction worldwide, but that had since gathered momentum. The Government argued that the dangers associated with asbestos had only come to the fore in the late 1970s at international level, and at that time the means of communication and disseminating information were not as prolific as they were today. They pointed out that the applicants had failed to prove that the publications they referred to had been available to the Government, medical practitioners and medical students. 96. Nonetheless, once the Government had become aware of the dangers associated with asbestos, they had embarked on an exercise to phase out the material, and legislation had been enacted to terminate the importation of asbestos into Malta. Laws were passed in order to protect employees from the dangers of asbestos exposure as early as 1987 (and not 2006 as claimed by the applicants) in the form of the Work Place (Health, Safety and Welfare) Regulations, which had entered into force on 9 February 1987, the Protection of Workers from the Risks related to Exposure to Carcinogens or Mutagens at Work Regulations, which had entered into force on 16 May 2003, and the Protection of Workers from the Risks related to Exposure to Asbestos at Work Regulations, which had entered into force on 15 December 2006 (see “ Relevant domestic law” above). Furthermore, according to the Government, the Occupational Health and Safety Authority provided preventive information and guidelines concerning the management and use of asbestos material. In particular, they highlighted the fact that in the late 1990s a sophisticated asbestos removal operation had been carried out at MDC on vessels undergoing repairs. The Government denied that the employees had been made to work on asbestos - laden ships, noting that after the Government had become aware of the hazardous nature of the material, employees who chose to work on such ships had been given an allowance as compensation. However, the Government pointed out that it was impossible for a country to be totally asbestos - free and for a worker never to come in contact with the material, particularly a worker in the shipbuilding or ship repair sector. They contended that anyone employed in such a work environment would be fully aware of the hazards involved. 97. The Government noted that Malta had not ratified all the ILO conventions, and of the sixty-one it had ratified, only fifty-four were in force. In particular, Malta had not ratified the ILO 1986 Asbestos Convention (which had come into force in 1989, having been ratified by thirty-five States at the time ) and consequently it had not been bound to implement its measures or recommendations. Nevertheless, the subsidiary legislation ( mentioned above ), enacted for the purposes, had been in line with the WHO guidelines. 98. The Government accepted that the applicants had been employed at the dockyard in the 19 50s and had continued their career there, but noted that the MDC was now in liquidation. Consequently it was difficult for the Government to provide any information about the extent of any information material given to the applicants at the time, since those persons administering the company at the time had by now retired or died. In any event the Government considered that they had not been responsible for not having disseminated information before the dangers of asbestos were known and generally accepted as correctly ascertained. Distinguishing the instant case from Guerra and Others (cited above ), they pointed out that no reports existed in this case. Moreover, the Government contended that the legislative enactments contained sufficient information and warnings to employees. 99. In the Government ’ s view, while a State was required to take preventive measures to protect individuals from risks to their life, there was a margin of appreciation left to the State in balancing the competing interests involved. In their view the legislative enactments, coupled with protective clothing (implying the provision of information), namely a mask similar to those used by workers exposed to volatile material - which admittedly could not be compared to modern equipment but which the Government had considered adequate for those days – had satisfied their obligations under Article 2. Moreover, the applicants had not proved that there had been any better equipment available at the time to protect employees. 100. Similarly, the Government submitted that they had fulfilled their positive obligations under Article 8 since, as soon as awareness of the harmful effects of asbestos exposure had been raised, legislation had been put in place to regulate its use in the workplace, to ban its importation, and to remove it from the shipbuilding process. Moreover, the employees had been given masks to minimise damage and had been paid an allowance by the ship owners to compensate for the risk they were exposed to. ( b ) The Court ’ s assessment ( i ) General principles 101. The Court makes reference to its general principles as stated in Öneryıldız and further elaborated on in Budayeva and Others ( both cited above ), as summarised in Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/ 05 and 35673/05, §§ 157-161, 28 February 2012, and as reiterated in Vilnes and Others v. Norway, nos. 52806/09 and 22703/10, § 220, 5 December 2013: “The Court reiterates that the positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (see paragraph 151 above) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (see Öneryıldız, cited above, § 89, and Budayeva and Others, cited above, § 129). The Court considers that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous. In the particular context of dangerous activities special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks (see Öneryıldız, cited above, §§ 71 and 90). Among these preventive measures particular emphasis should be placed on the public ’ s right to information, as established in the case-law of the Convention institutions. The relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels (see Öneryıldız, cited above, §§ 89- 90, and Budayeva and Others, cited above, § 132 ). As to the choice of particular practical measures, the Court has consistently held that where the State is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State ’ s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres (see Budayeva and Others, cited above, §§ 134-35). In assessing whether the respondent State complied with its positive obligation, the Court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic legality of the authorities ’ acts or omissions, the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved. The scope of the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation (see Budayeva and Others, cited above, §§ 136-37).” 102. The Court has also held on many occasions that the State has a positive duty to take reasonable and appropriate measures to secure an applicant ’ s rights under Article 8 of the Convention (see, among many other authorities, López Ostra, cited above, § 51, Series A no. 303 ‑ C; Powell and Rayner v. the United Kingdom, 21 February 1990, § 41, Series A no. 172; and, more recently, Di Sarno and Others v. Italy, no. 30765/08, § 96, 10 January 2012 ). In particular, the Court has affirmed a positive obligation of States, in relation to Article 8, to provide access to essential information enabling individuals to assess risks to their health and lives (see, by implication, Guerra and Others, cited above, §§ 57-60; López Ostra, cited above, § 55; McGinley and Egan, cited above, §§ 98-104; and Roche, cited above, §§ 157-69). In the Court ’ s view, this obligation may in certain circumstances also encompass a duty to provide such information (see, by implication, Guerra and Others, cited above, §§ 57-60; and Vilnes and Others, cited above § 235). It has also recognised that in the context of dangerous activities, the scopes of the positive obligations under Articles 2 and 8 of the Convention largely overlap (see Budayeva and Others, cited above, § 133). Indeed, the positive obligation under Article 8 requires the national authorities to take the same practical measures as those expected of them in the context of their positive obligation under Article 2 of the Convention (see Kolyadenko and Others, cited above, § 216). (ii) Application to the present case 103. In the absence of more detail in the Government ’ s submissions, the Court will assess the case on the basis of the material available to it. 104. On the basis of the material in its possession, the Court considers it established that the applicants in applications nos. 60908/11, 62110/11, 62 129/11 and 62312/11 and Mr Attard (hereinafter “the applicants” for ease of reference) were exposed to asbestos during their careers as employees at the ship repair yard run by the MDC. Indeed, while admitting that all workers were exposed to some extent, the Government contended that after they had become aware of the relevant dangers, they had ensured that the applicants were not made to work on asbestos- laden ships, without submitting what other possible functions or work they had been assigned at their place of work or any details regarding the dates when they had ceased to work with such material. Given the information and documents available, the Court finds no reason to doubt the applicants ’ assertions as to their working history. 105. The Court must also consider whether the Government knew or ought to have known of the dangers arising from exposure to asbestos at the relevant time ( from the entry into force of the Convention for Malta in 1967 onwards) (see, in a different context, O ’ Keeffe v. Ireland [GC] no. 35810/09, 28 January 2014, §§ 152 and 168). In this connection the Court notes that the Government implicitly admitted to have known of these dangers in or around 1987, as they stated that as soon as they had become aware of the dangers associated with asbestos, laws were enacted to protect employees from these dangers as early as 19 87. Nevertheless, given that Mr Attard had left the dry docks in 1974, the Court must examine whether at the time while he was exposed, that is, at least in the early 1970s, the Government knew or ought to have known of the relevant dangers. The Court acknowledges that the ILO Asbestos Recommendation and subsequent Convention which contained the minimum standards applicable concerning the use of asbestos were adopted in 1986. Nevertheless, as in many cases, the adoption of such texts comes after considerable preparatory work which may take significant time, and in the ambit of the ILO after having undertaken meetings with representatives of governments, and employers ’ and workers ’ organisations of all member countries of the organisation. They are usually preceded by a number of guidelines, and before concrete proposals can be made there is a thorough search for a consensus between the stake holders, namely public authorities as well as employers and workers. It is also common knowledge that the issues surrounding asbestos have been greatly debated amongst stakeholders all over the world, and that given the interests involved, particularly economic and commercial ones, acknowledging its harmful effects has not been easy. In this connection the Court observes that up to this date a number of countries have not yet banned the substance and only thirty-five countries out of the one hundred and ninety-eight United Nations Member States have ratified the Asbestos Convention. It appears logical, that this cannot be taken to mean that the dangers of asbestos are today still unknown. 106. Thus, as to whether the Maltese Government knew or ought to have known in the early seventies, the Court must rely on other factors, most evident amongst them being objective scientific research, particularly in the light of the domestic context. The Court takes account of the list, submitted by the applicants, which contains references to hundreds of articles or other publications concerning the subject at issue published from 1930 onwards - many of them taken from reputable British medical journals. The Court observes that medical studies at the then Royal University of Malta were modelled on, and followed closely upon, the corresponding United Kingdom system, with many graduates in medicine continuing their studies in England and Scotland. Particularly in view of this situation, even accepting the Government ’ s argument - that is, that information was at the time not as readily available as it is today - it is inconceivable that there was no access to any such sources of information, at least, if by no one else, by the highest medical authorities in the country, notably the Chief Government Medical Officer and Superintendent of Public Health (as provided for in the, now repealed, Department of Health (Constitution) Ordinance, Chapter 94 of the Laws of Malta, see paragraph 42 above ). In fact, according to Maltese law it was precisely the duty of the Superintendent of Public Health to remain abreast of such developments and advise the Government accordingly. The Court, further, observes that it has not been submitted that there had been any specific impediment to access the necessary information. Furthermore, the Government failed to rebut the applicants ’ assertion with any signed statement by a medical expert or authority, who could have attested that the medical professionals in the country were, in or around the 1970s, unaware of these worrying medically related findings at the time. Moreover, the Pellicano judgment by the Commercial Court (see paragraph 35 above) is in itself an implicit acknowledgement by a domestic court that in the years preceding Mr Pellicano ’ s death in 1979 the authorities knew or ought to have known of the dangers of working with asbestos and that they had failed to provide adequate health and safety measures in that respect. Against this background, the Court concludes that for the purposes of the present case, it suffices to consider that the Maltese Government knew or ought to have known of the dangers arising from exposure to asbestos at least as from the early 1970s. 107. As to the fulfillment of the ensuing obligations, as stated above, the respondent Government claimed that as soon as they had become aware of the dangers associated with asbestos, laws were enacted to protect employees from these dangers and this as early as 1987 by means of the Work Place (Health, Safety and Welfare) Regulations. It follows that, by Government ’ s admission, up until 1987 no positive action was taken in the nearly two decades (four years in the case of Mr. Attard who left the MDC in 1974) during which the applicants had been exposed to asbestos. 108. As to the steps taken after 1987, the Court firstly notes that the mentioned regulations make no reference to asbestos, unlike the later legislation which was enacted for that precise purpose. Consequently, it is difficult to accept the Government ’ s argument that the Work Place (Health, Safety and Welfare) Regulations were the first proactive attempt to safeguard the applicants against these dangers by means of legislation. 109. However, even assuming that the Work Places (Health, Safety and Welfare) Regulations were indeed a legislative reaction to the dangers of asbestos exposure and that, therefore, the Government treated asbestos as falling into the category of a “ toxic material ” or “dangerous substance” for the purposes of that legislation, the Court notes the following. In accordance with Regulation 16, no employer may use or suffer to be used any chemical or material which is toxic without the approval of the Superintendent of Public Health. The Government did not find it expedient to explain whether such approval had been sought or given for asbestos and, if so, on what grounds. Even if approval was given, by the Government ’ s implicit admission, asbestos continued to be used and employees continued to work on it. Pursuant to Regulation 18, it was the duty of the employer to ensure that the atmosphere in workrooms in which potentially dangerous or obnoxious substances were handled or used was tested periodically to ensure that, inter alia, toxic or irritating fibres were not present in quantities that could injure health, and to maintain an atmosphere fit for respiration. Moreover, no work should have been carried out unless such tests had been done. Again, the Government have not indicated that any such tests had ever been carried out in the workrooms (or elsewhere) where the applicants, like the other employees, had been exposed to asbestos. Apart from the above -mentioned regulations (16 and 18), the Work Places (Health, Safety and Welfare) Regulations made no provision for any other practical measures which could or should have been taken in order to protect the applicants, nor were there any provisions concerning the right to access information. It was only the legislation enacted in 2003 and 2006 which introduced such measures, including ( but not limited to ) the duty to provide the applicants and people in their situation with information about the risks to health and safety which they were facing. 110. The Court considers that enacting specific legislation fifteen years after the time in the mid-1980s when the Government accept that they were aware of the risks can hardly be seen as an adequate response in terms of fulfilling a State ’ s positive obligations. Furthermore, by the time the 2002, 2003 and 2006 legislation had been enacted and came into force (see paragraphs 33 and 34 above), the applicants had little if anything to gain since the timing coincided with the end of their careers, when they were leaving or had already left Malta Drydocks (see paragraph 6 above). 111. Consequently, from the information provided, it is apparent that from the mid- 1980 s to the early 2000 s, when the applicants (except for Mr Attard ) left the MDC, the legislation was deficient in so far as it neither adequately regulated the operation of the asbestos - related activities nor provided any practical measures to ensure the effective protection of the employees whose lives might have been endangered by the inherent risk of exposure to asbestos. Moreover, even the limited protection afforded by that legislation had no impact on the applicants since it appears to have remained unenforced. 112. The Court considers that, while there is a primary duty to put in place a legislative and administrative framework, it cannot rule out the possibility, a priori, that in certain specific circumstances, in the absence of the relevant legal provisions, positive obligations may nonetheless be fulfilled in practice. In the present case, however, the only practical measure that appears to have been taken by the State, as the employer, was to distribute masks, on unspecified dates and at unspecified intervals ( if distributed repeatedly at all ). The Court notes in this connection that the apparently disposable masks ( which were shown to the Court) were considered by experts in the Pellicano case to be of “inadequate quality” and “ did not take sufficient account of the state of scientific knowledge about the subject matter at the relevant time” (see paragraph 33 above). These findings are sufficient for the Court to conclude that such practical attempts left much to be desired. 113. As to the duty to provide access to essential information enabling individuals to assess risks to their health and lives and the duty to provide such information, the Court notes that the Government submitted that no information reports were in fact available and that it was difficult for them to provide any information about the extent of any informative material given to the applicants. They noted, however, that the Occupational Health and Safety Authority (OHSA) provided preventive information and guidelines concerning the management and use of asbestos. 114. It would therefore appear that no information was ever collected or studies undertaken or reports compiled specifically about the asbestos situation at the applicants ’ place of work. Furthermore, the Government did not even argue that any general information was, in fact, accessible or made available to the applicants. Instead the Government, seemingly oblivious to the obligations arising from the Convention, opted to consider that it was not their responsibility to provide information at the outset and that anyone in such a work environment would in any case be fully aware of the hazards involved. The Court considers the latter statement to be in stark contrast to the Government ’ s repeated argument that they (despite being employers and therefore well acquainted with such an environment) were for long unaware of the dangers. The Court further finds inappropriate the Government ’ s contention that the distribution of the above - mentioned masks was an implicit source of information. Additionally, in relation to the Government ’ s reference to the information available at the OHSA, the Court notes that this authority was only created after the year 2000 and it could therefore not have been a source of information before that date. It follows that in practice no adequate information was in fact provided or made accessible to the applicants during the relevant period of their careers at the MDC. 115. Lastly, the Court notes that the Government submitted a general statement to the effect that employees who had worked on asbestos (after its dangers became known to the Government ) were offered compensation or a special allowance to perform such work. The Court firstly draws attention to the domestic case-law on the matter (see paragraph 34 above). But more importantly, it notes that the Government have not provided any relevant information specific to the instant case. They did not submit whether the applicants in the present case had been entitled to such compensation and if so whether they had accepted it or received it. Neither has it been submitted or shown that, because they were not working on asbestos from a specific date onwards, they were not entitled to compensation. Nor did the Government submit any information as to when such compensation had in fact become available. In that light, such an abstract affirmation can have no bearing on the Court ’ s conclusion. 116. The above considerations lead the Court to conclude that in view of the seriousness of the threat at issue, despite the State ’ s margin of appreciation as to the choice of means, the Government have failed to satisfy their positive obligations, to legislate or take other practical measures, under Articles 2 and 8 in the circumstances of the present case. 117. It follows that there has been a violation of Article 2 in respect of the applicants in application no. 62338/11 relating to the death of Mr Attard and a violation of Article 8 in respect of the remaining applicants. B. The procedural complaint under Article 2 118. In their applications, the applicants also appeared to complain – albeit in unclear terms – that the Government had failed to investigate the circumstances of the case and prosecute those responsible, in violation of their procedural obligations under Article 2 of the Convention. They contended that the very knowledge that people were dying of malignant mesothelioma (as shown from death certificates which were publicly available) should have prompted the authorities to take the necessary steps and comply with their duty to investigate and institute some sort of proceedings against those responsible. The State ’ s inability to point to any such action was tantamount to an admission of their failure to comply with their procedural obligations under Article 2. 119. The Government argued that it was incumbent on the victims or their heirs to institute proceedings before the ordinary domestic courts and to prove the link between asbestos exposure and the damage claimed. Moreover, the Government had been aware of only two deaths connected with the subject matter, namely those of Mr Pellicano and Mr Attard, which had occurred after the dry docks had ceased operating. 120. The Court reiterates that the provision is applicable only in respect of the applicants in application no. 62338 /11 relating to the death of Mr Attard. 121. The Court observes that – unlike in medical negligence cases, where a civil remedy may suffice ( see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I) – in cases concerning incidents resulting from dangerous activities under Article 2, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in any capacity whatsoever in the chain of events concerned (see Öneryıldız, cited above, § 94 and Budayeva, cited above, § 142). 122. In Öneryıldız (deaths resulting from a landslide caused by a methane explosion) the Court in fact adopted that approach after it had found the following § 93 : “ It should be pointed out that in cases of homicide the interpretation of Article 2 as entailing an obligation to conduct an official investigation is justified not only because any allegations of such an offence normally give rise to criminal liability (see Caraher v. the United Kingdom ( dec. ), no. 24520/94, ECHR 2000-I), but also because often, in practice, the true circumstances of the death are, or may be, largely confined within the knowledge of State officials or authorities (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 47-49, §§ 157-64, and İlhan, cited above, § 91). In the Court ’ s view, such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents.” 123. It follows that, although in most cases requiring an investigation a complaint is generally lodged with the authorities in order to obtain such an investigation, it is not mandatory in cases where the authorities are better placed to know about the original cause of the claim. 124. The Court notes that the present case concerns a death that did not result from one particular instance but rather from circumstances which were spread over a number of decades, and which did not ensue from uncertain conditions - indeed, the State ’ s responsibility has been established by the domestic courts in similar circumstances even where there was no investigation. In fact the Pellicano case was decided, in so far as responsibility in concerned, in 1989 and Mr Attard died in 2006. There is no doubt that during that period information about asbestos related consequences was publicly available. 125. It follows that it cannot be said that the circumstances of Mr Attard ’ s death were confined within the knowledge of state officials and therefore that the Government should have conducted an investigation ex officio. 126. The Court further notes that there was nothing preventing the applicants from lodging a complaint in order to bring their concerns to the Government ’ s attention. In these circumstances, the applicants in application no. 62338/11 should have at least lodged a complaint with the relevant authorities concerning the death of Mr Attard and requested an investigation and the prosecution of those responsible. However, no such action was undertaken by the applicants. 127. It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non- exhaustion of domestic remedies. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 128. The applicants complained that the Government had failed to protect them from suffering inhuman and degrading treatment within the meaning of Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 129. The Government argued that it was evident that they had fulfilled their positive obligations under Article 3 but they in any event submitted that no evidence had been produced by the applicants to prove that they had been ill-treated or tortured or subjected to any degrading treatment. 130. Having examined the medical reports submitted by the applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11, the Court considers that while the conditions in which those applicants have lived in recent years – which were even more severe in the case of Mr John Mary Abela – have undoubtedly caused some difficulties and discomfort, they cannot be considered to amount to degrading treatment within the meaning of Article 3 (see, mutatis mutandis, López Ostra, cited above, § 60) and cannot therefore trigger the state ’ s positive obligations under that provision ( see Fadeyeva v. Russia ( dec. ), no. 55723/00, 16 October 2003). 131. It follows that this complaint must be rejected as manifestly ill ‑ founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 132. In respect of the applicants in application no. 62338/11, namely the relatives of the deceased Mr Attard, the Court considers that – even assuming that the suffering of Mr Attard can be considered to have reached the relevant threshold for the purposes of this provision – bearing in mind the findings in paragraph 113 above and the strictly personal nature of Article 3 and the complaint at issue, the circumstances of the present case do not lead to the conclusion that the Article 3 claim is transferrable to the heirs on the grounds of either general interest or strong moral interest (see Kaburov v. Bulgaria ( dec. ) §§ 56-57, 19 June 2012). For these reasons, the applicants in application no. 62338/11 cannot be considered to have victim status in respect of this complaint. 133. The Court considers that their complaint is therefore incompatible ratione personae with the provisions of the Convention for the purposes of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 134. The applicants complained of a violation of Article 13 in so far as the Constitutional Court judgment in their cases deprived them of an effective remedy under Article 13 in conjunction with Articles 2, 3 and 8 of the Convention. Article 13 reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 135. The Government contested that argument. They argued that if the applicants were complaining about the judgment of the Constitutional Court, they should have instituted a fresh set of constitutional redress proceedings to complain about the matter, and the Constitutional Court would have had the competence and necessary impartiality to examine it. Furthermore, they contended that the applicants had in fact had an effective remedy for the purposes of Articles 2 and 3 of the Convention, namely an action in tort. They referred to their observations for the purposes of their plea of non-exhaustion of domestic remedies. 136. The Court firstly notes that it has already established in the context of Maltese cases before it that even though Maltese domestic law provides for a remedy against a final judgment of the Constitutional Court, the length of the proceedings detracts from the effectiveness of that remedy and, in view of the specific situation of the Constitutional Court in the domestic legal order, this is not a remedy which needs to be used in order to fulfil the exhaustion requirement (see Saliba and Others v. Malta, no. 20287/10, § 78, 22 November 2011 and Bellizzi v. Malta, no. 46575/09, § 44, 21 June 2011). Thus, contrary to the Government ’ s arguments, the applicants are entitled to raise their complaint before the Court at this stage. 137. The Court reiterates that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The remedy required by Article 13 must be “effective” in practice as well as in law. In particular, its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Aksoy v. Turkey, 18 December 1996, § 95, Reports 1996-VI, and Aydın v. Turkey, 25 September 1997, § 103, Reports 1997 ‑ VI). However, the effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Sürmeli v. Germany [GC], no. 75529/01, § 98, ECHR 2006 ‑ VII), and the mere fact that an applicant ’ s claim fails is not in itself sufficient to render the remedy ineffective ( Amann v. Switzerland, [GC], no. 277 98/95, §§ 88-89, ECHR 2002-II). 138. In relation to the complaint in conjunction with Articles 2 and 8, the Court has already explained in paragraph 63 above that an effective remedy existed ( contrast Di Sarno, cited above, § 118). The fact that the use of that remedy did not lead to a finding in favour of the applicants or remained unused in the particular circumstances does not render it ineffective. 139 In relation to the complaint in conjunction with Article 3, the Court reiterates that Article 13 does not apply if there is no arguable claim. As it has found above, the complaints under that Article were either manifestly ill-founded or inadmissible ratione personae. Consequently there was no such claim. It follows, that Article 13 is not applicable in conjunction with Article 3. 140. In conclusion, the entirety of the complaint under Article 13 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 141. Lastly, the applicants also appear to be complaining that their families were equally victims of the above- mentioned provisions in so far as they were affected by the third- party transfer of asbestos particles. 142. The Court notes that only the relatives of the deceased Mr Attard have applied to it. The relatives of the other applicants have not lodged any complaints with the Court. It follows that any complaint lodged by the other applicants on behalf of their families – who have not themselves applied to be parties to the proceedings – must be rejected as incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. 143. Thus, the complaint of which the Court takes cognisance can concern only the family of Mr Attard, namely the applicants in application no. 62338/11. 144. The Court reiterates that severe environmental pollution may affect individuals ’ well-being and prevent them from enjoying their homes in such a way that their private and family life are adversely affected even without seriously endangering their health (see Lόpez Ostra, cited above, § 51). However, in the present case, in so far as the complaint goes beyond that examined under Article 2 of the Convention, the Court considers that the complaint concerning the applicants in person does not appear to have been sufficiently developed before the domestic courts with constitutional jurisdiction. The same applies in respect of the applications lodged with the Court. 145. The complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 146. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 147. The applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 claimed 40,000 euros (EUR) per applicant ( except for Mr John Mary Abela who claimed EUR 70,000 given his specific condition ) in respect of pecuniary damage in the form of biological damage to their lungs, loss of independence as a result of their impaired lung function and the need for regular visits to a lung specialist. In the case of Mr John Mary Abela this also covered fees incurred in relation to mobility assistance. They also claimed EUR 100,000 per applicant in respect of non ‑ pecuniary damage for the four alleged violations. 148. The first applicant in application no. 62338/11 claimed EUR 94,500 in respect of pecuniary damage. That sum included EUR 74, 500 covering the pay Mr Attard would have received over the four years up to retirement had he not passed away at the age of sixty-one as a result of his asbestos - related disease (based on his annual pay in 2004 of approximately EUR 18,635, submitted to the Court ) and an additional EUR 20,000 for maintaining a home until his wife reached eighty years of age. The applicants in application no. 62338/11 claimed EUR 120,000 each in respect of non-pecuniary damage. 149. The Government submitted that the computation of pecuniary damage in the applicants ’ cases was a matter for the domestic courts in ordinary civil proceedings and could not be based on data from an insurance website, which was what the applicants had utilised. The Government submitted that the applicants had, moreover, not provided proof of any such pecuniary damage. Furthermore, there was no causal link between the quantum of damages and the alleged hazard. As to the claims in respect of non-pecuniary damage, the Government submitted that the mere finding of a violation would suffice – the underlying principle of human rights being to provide standards – and that if the Court considered that an award should be made in respect of non - pecuniary damage, it should not exceed EUR 1,000 per applicant. 150. The Court has accepted the link between the medical conditions affecting the relevant applicants and their exposure to asbestos during the time they worked at MDC, and it thus discerns a causal link between the violation found and some of their claims in respect of pecuniary damage. However, none of the applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 has substantiated these claims, which are therefore dismissed. In respect of the claims of the first applicant in application no. 62338/11, the Court notes that the retirement age in Malta is in fact sixty-one years of age and that there was therefore no guarantee that Mr Attard would have worked any longer had he not passed away. Moreover, the Court sees no causal link between his wife ’ s claim for household maintenance and the violations alleged. It follows that these claims are also dismissed. 151. On the other hand, given the violations of either Article 2 or 8 of the Convention in the present case – which the mere finding of a violation in this judgment is not sufficient to remedy – the Court awards the applicants the following amounts in respect of non-pecuniary damage: The applicants in application no. 62338/11, EUR 30 ,000 in total; Mr John Mary Abela EUR 1 2 ,000; Mr Dyer, EUR 1 ,000; and the remaining applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11, EUR 9 ,000 each. B. Costs and expenses 152. The applicants also claimed the following costs and expenses incurred before the domestic courts and the Court : Application no. 60908/11 : EUR 15,112 ( comprising EUR 4,302 as per the attached bill of costs plus an additional EUR 780 in VAT for legal counsel and interest at 8%, together with extrajudicial fees towards payment for legal counsel of EUR 7,080 (inclusive of VAT) in conjunction with the domestic proceedings, and EUR 2,950 – amounting to EUR 600 per applicant, plus VAT – for proceedings before the Court ). Application no. 62110/11 : EUR 13,467 ( comprising EUR 4,1 77 as per the attached bill of costs, plus an additional EUR 7 94 in VAT for legal counsel and interest at 8%, together with extrajudicial fees towards payment for legal counsel of EUR 5,664 (inclusive of VAT) in conjunction with the domestic proceedings, and EUR 2,832 – amounting to EUR 600 per applicant, plus VAT – for proceedings before the Court). Application no. 62129/11 : EUR 15,525 ( comprising EUR 4,163 as per the attached bill of costs, plus an additional EUR 742 in VAT for legal counsel and interest at 8%, together with extrajudicial fees towards payment for legal counsel of EUR 7,080 (inclusive of VAT) in conjunction with the domestic proceedings, and EUR 3,540 – amounting to EUR 600 per applicant, plus VAT – for proceedings before the Court). Application no. 62312/11 : EUR 13,499 ( comprising EUR 4,328 as per the attached bill of costs, plus an additional EUR 782 in VAT for legal counsel and interest at 8%, together with extrajudicial fees towards payment for legal counsel of EUR 5,664 (inclusive of VAT) in conjunction with the domestic proceedings, and EUR 2,724 – amounting to EUR 600 per applicant, plus VAT – for proceedings before the Court). Application no. 62338/11 : EUR 14,915 ( comprising EUR 7,154 as per the attached bill of costs, plus an additional EUR 1,388 in VAT for legal counsel and interest at 8%, together with extrajudicial fees towards payment for legal counsel of EUR 4,248 (inclusive of VAT) in conjunction with the domestic proceedings, and EUR 2,124 – amounting to EUR 600 per applicant, plus VAT – for proceedings before the Court). 153. The Government did not contest the part of the claims concerning the costs incurred by the applicants before the domestic courts (as per the taxed bill) but they contested the part concerning the expenses payable in respect of the opposing parties ( the Occupational Health and Safety Authority and the Government ) since the applicants had not shown that those payments had actually been made. They further contended that no interest was due on the judicial bill of costs. The Government further noted that all costs related to the domestic proceedings were included in the taxed bill of costs ( including the lawyer ’ s fees ) and therefore no extrajudicial legal fees were due. Lastly, the Government noted that the applicants had claimed EUR 14,170 in total for the proceedings before the Court, but argued that, given that the applications had been dealt with together and that the applications and submissions were identical, the Court should not award more than EUR 2 ,500 for proceedings before it. 154. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court firstly notes that if any dues relating to the domestic proceedings are still unpaid, they remain payable to the relevant parties in accordance with domestic law. In the present case, taking into account the documents in its possession and the above criteria, and in particular the fact that, as argued by the Government, legal fees are already included in the taxed bill of costs and the applications before the Court were treated jointly, the Court considers it reasonable to award the sum of EUR 6,000 per application covering costs under all heads. C. Default interest 155. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention in respect of the applicants whose relative had died, and a violation of Article 8 (right to respect for private and family life) of the Convention in respect of the remainder of the applicants. It found in particular that, in view of the seriousness of the threat posed by asbestos, and despite the room for manoeuvre (“margin of appreciation”) left to States to decide how to manage such risks, the Maltese Government had failed to satisfy their positive obligations under the Convention, to legislate or take other practical measures to ensure that the applicants were adequately protected and informed of the risk to their health and lives. Indeed, at least from the early 1970s, the Maltese Government had been aware or should have been aware that the ship-yard workers could suffer from consequences resulting from the exposure to asbestos, yet they had taken no positive steps to counter that risk until 2003. |
1,000 | Protection of property (Article 1 of Protocol No. 1) | II. RELEVANT DOMESTIC LAW A. The Basic Law 25. The Basic Law provides: Article 4 [Freedom of faith and conscience] “(1) Freedom of faith and conscience and freedom to profess a religious or philosophical creed shall be inviolable.” Article 14 [Property – Inheritance – Expropriation] “(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the law. (2) Property entails obligations. Its use shall also serve the public good.” Article 20a (as in force since 1 August 2002) [Protection of the natural foundations of life and animals] “Mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals through legislation and, in accordance with law and justice, through executive and judicial measures, all within the framework of the constitutional order.” Article 72 (as in force since 1 September 2006) [Concurrent legislative powers] “(1) On matters falling within the scope of concurrent legislative powers, the Länder shall have power to legislate so long as and to the extent that the Federation has not exercised its legislative powers by enacting a law. (2) ... (3) If the Federation has made use of its power to legislate, the Länder may enact laws at variance with this legislation with respect to: 1. hunting (except for the law on hunting licenses); ... Federal laws on these matters shall enter into force no earlier than six months following their promulgation unless otherwise provided with the consent of the Bundesrat. As regards the relationship between Federal law and the laws of the Länder, the more recent law shall take precedence in respect of matters coming within the scope of the first sentence.” B. The Civil Code 26. Section 960(1)(1) of the Civil Code provides: “Wild animals shall be ownerless as long as they are not in captivity. ...” C. The Federal Hunting Act 27. Section 1 of the Federal Hunting Act (Bundesjagdgesetz) reads as follows: “(1) Hunting rights shall comprise the exclusive rights to protect, hunt and acquire ownership of wild game in a specific area. Hunting rights shall be linked to a duty to manage and protect game stocks ( Pflicht zur Hege ). (2) The management of game stocks shall be aimed at maintaining varied and healthy game populations at a level compatible with care of the land and with the prevailing cultural conditions and at preventing damage caused by game ... (3) Persons engaging in hunting shall abide by the commonly accepted standards of the German ethical principles governing hunting ( deutsche Weidgerechtigkeit ). (4) Hunting shall encompass the search for, pursuit, killing and catching of wild game. ...” 28. The Federal Hunting Act distinguishes between hunting rights ( Jagdrecht ) and the exercise of hunting rights ( Ausübung des Jagdrechts ). The landowner has hunting rights over his or her property. The exercise of hunting rights is regulated by the following sections of the Hunting Act: Section 4 “Hunting rights may be exercised either in private hunting districts (section 7) or in common hunting districts (section 8).” Section 6 (Enclosed properties, suspension of the hunt) “The hunt shall be suspended on land which does not belong to a hunting district, and on enclosed properties ( befriedete Bezirke ). Limited exercise of hunting rights may be permitted. This law does not apply to zoological gardens.” 29. Section 7 provides, inter alia, that plots of at least 75 hectares which can be used for agriculture, forestry or fishing and which belong to a single owner constitute private hunting districts. 30. Section 8 provides that all land which does not belong to a private hunting district constitutes a common hunting district if it has an overall surface area of at least 150 hectares. The owners of land belonging to a common hunting district are de jure members of a hunting association according to the following provisions: Section 9(1) “The owners of land belonging to a common hunting district shall form a hunting association. The owners of land on which hunting is prohibited shall not belong to the hunting association.” Section 10 “(1) The hunting association shall as a rule operate the hunt on a leasehold basis. The lease may be limited to the members of the association. (2) The hunting association shall be allowed to lease out the hunting rights on its own account. With the agreement of the competent authority, it may decide to suspend the hunt ( Ruhen der Jagd ). (3) The association shall decide on the use to be made of the net profits from the hunt. If the association decides not to distribute them among the owners of the hunting grounds according to the amount of land they own, each owner who contests this decision shall be allowed to claim his or her share. ...” 31. The practice of hunting is regulated as follows: Section 20 “(1) Hunting shall be prohibited in areas where it would, in the specific circumstances, disturb public peace, order or safety or endanger human life. (2) Hunting in nature and wildlife conservation areas and in national and wildlife parks shall be regulated by the Länder .” Section 21(1) “The shooting of game is to be regulated in a manner which fully safeguards the legitimate interest of agriculture, fishery and forestry in being protected from damage caused by wild game, and which takes into account the requirements of the conservation of nature and the landscape. Subject to these restrictions, the regulation of game shooting shall contribute to maintaining a healthy population of all domestic game in adequate numbers and, in particular, to ensuring the protection of endangered species.” 32. Liability for damage caused by game is regulated as follows: Section 29(1) “If a plot belonging to a common hunting district or being incorporated in a common hunting district is damaged by cloven-hoofed game, wild rabbits or pheasants, the hunting association shall compensate the landowner for the damage. The cost of compensation shall be borne by the members of the association in proportion to the size of their respective plots. If the leaseholder of the hunt has assumed partial or full liability for compensation in respect of game damage, he or she shall be liable. The hunting association shall remain liable if the person who sustained the damage is unable to obtain compensation from the leaseholder.” D. The Hunting Act of Rhineland-Palatinate 33. In so far as relevant, the Hunting Act of Rhineland-Palatinate – the Land where the applicant’s plots are located – provides as follows: Section 7 “(1) Hunting association are public-law corporations. They are subject to State supervision, exercised by the local hunting authority ... Each hunting association shall create its own statutes ( Satzung ). The statutes must be approved by the supervisory authority unless they are in accordance with the model statutes issued by the highest hunting authority; in this case, notice of the statutes shall be given to the local hunting authority. If the hunting association fails to create statutes within one year after the issue of the model statutes, the supervisory authority shall create and publish them ... at the association’s expense. ... (4) Cost orders ( Umlageforderungen ) shall be enforced in accordance with the provisions of the law on the enforcement of administrative acts. The powers of enforcement shall be exercised by the treasury office responsible for enforcing the claims of the municipality in which the association is situated ...” III. COMPARATIVE LAW 34. The research undertaken by the Court in relation to forty Council of Europe member States shows that membership of a hunting association is not compulsory in thirty-four countries (Albania, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Montenegro, the Netherlands, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom). In Austria, France and Sweden membership of a hunting association is obligatory in principle. The legislation in Georgia and in Switzerland makes no provision for hunting associations. Lastly, hunting is not practised in Monaco. 35. Considerable differences exist between these member States’ laws as regards the obligation for landowners to tolerate hunting on their land. Of the thirty-nine member States in which hunting is practised, eighteen (Albania, Azerbaijan, Belgium, Estonia, Finland, Georgia, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Portugal, “the former Yugoslav Republic of Macedonia”, the United Kingdom and Ukraine) do not oblige landowners to tolerate hunting, while eighteen others (Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Greece, Italy, Montenegro, Poland, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden and Turkey) do. However, both groups provide for exceptions of varying degrees to their respective rules. In France and the Czech Republic, the obligation to tolerate hunting depends on the specific situation regarding the plot of land and on administrative decisions. In Switzerland, there is no legislation governing the obligation to tolerate hunting. 36. In four member States the legislation or case-law has been amended following the Court’s judgment in the case of Chassagnou and Others, cited above. In France, under the Loi Voynet of 26 July 2000, owners of land who are opposed to hunting for ethical reasons may, under certain conditions, request the termination of their membership of a hunting association. In Lithuania, following a ruling by the Constitutional Court, section 13(2) of the Hunting Act ceased to apply on 19 May 2005. Under this provision, landowners could object to hunting on their land only in cases where it might cause damage to their crops or forest land. In Luxembourg, in the wake of the judgments in Schneider v. Luxembourg (no. 2113/04, 10 July 2007) and Chassagnou and Others, cited above, the Hunting Act of 20 July 1929 was repealed and a new Act entered into force on 31 May 2011. It provides that landowners opposed to hunting on their land may, under certain conditions, request termination of their membership of a hunting association. Lastly, in the Czech Republic, the Constitutional Court ruled on 13 December 2006 that the administrative authority had to decide whether land could be included in a hunting district by weighing the different interests at stake in the light of the principles set out in the Chassagnou judgment. THE LAW I. THE SCOPE OF THE CASE BEFORE THE GRAND CHAMBER 37. In his submissions before the Grand Chamber, the applicant reiterated his complaint under Article 11 taken separately and in conjunction with Article 14 of the Convention. In the alternative, he complained under Article 8 of the Convention about his compulsory membership of the hunting association. 38. The Court reiterates that the “case” referred to the Grand Chamber is the application as it has been declared admissible by the Chamber (compare, among many other authorities, K. and T. v. Finland [GC], no. 25702/94, §§ 140-141, ECHR 2001-VII; D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 109, ECHR-2007-IV; and Taxquet v. Belgium [GC], no. 926/05, § 61, ECHR 2010). This means that the Grand Chamber may examine the case in its entirety in so far as it has been declared admissible; it cannot, however, examine those parts of the application which have been declared inadmissible by the Chamber (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, §§ 59-62 ECHR 2007 ‑ I, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 235, 26 June 2012). 39. It follows that in the context of the present case, the Court no longer has jurisdiction to examine the complaints under Article 11, taken alone and in conjunction with Article 14 of the Convention, which were declared inadmissible by the Chamber (see paragraph 4 above). The same applies to the complaint under Article 8 of the Convention, a provision which was not relied upon by the applicant before the Chamber. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 40. The applicant complained that the obligation to tolerate the exercise of hunting rights on his property violated his right to the peaceful enjoyment of his possessions as guaranteed by Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The Chamber judgment 41. The Chamber found that the obligation to allow hunting on his property interfered with the applicant’s right to the peaceful enjoyment of his property but was justified under the second paragraph of Article 1 of Protocol No. 1 to the Convention. The Chamber noted at the outset that the Federal Hunting Act was aimed at maintaining varied and healthy game populations at a level compatible with care of the land and with cultural conditions, and at avoiding game damage. The Chamber accepted that these aims were in the general interest. 42. With regard to the proportionality of the interference, the Chamber took note of the emphasis the relevant law placed on the maintenance of healthy fauna in accordance with ecological and economic conditions. Even though it appeared that hunting was primarily practised by individuals during their spare time, the Chamber considered that the purpose of the Hunting Act could not be reduced to merely enabling certain individuals to exercise a leisure activity. 43. With regard to the necessity of the measure at issue, the Chamber further considered that the German law, in contrast to the legislation examined in the cases of Chassagnou and Schneider, cited above, applied nationwide and did not exempt the public or private owners of any property that was a priori suitable for hunting from the obligation to tolerate hunting on their property. Lastly, it considered that any exceptions to the rule of area-wide hunting were sufficiently justified by general and hunting-related interests and thus did not call into question the principle of area-wide hunting as such. 44. The Chamber further noted that the applicant was entitled to a share of the profits from the lease in proportion to the size of his property. Even though the sum he could claim did not appear to be substantial, the Chamber considered that the relevant provisions prevented other individuals from deriving financial profit from the use of the applicant’s land. 45. Having regard to the wide margin of appreciation afforded to the Contracting States in this area, allowing them to take into account the specific circumstances prevailing in their country, the Chamber concluded that there had been no violation of Article 1 of Protocol No. 1 (see paragraphs 45-56 of the Chamber judgment). B. The parties’ submissions 1. The applicant 46. The applicant submitted that the limitations imposed on the use of his land by the Federal Hunting Act were disproportionate. The German legislature had failed to strike a fair balance between his interest in enjoying the use of his property and the alleged general interest in the practice of hunting. As he was the only landowner within the hunting association who was opposed to the practice of hunting, he was materially unable to prevent the leasing of the hunting rights. 47. The circumstances of the case resembled those examined by the Court in the cases of Chassagnou and Schneider, cited above, and thus should lead to the same conclusions. The aims pursued by the German legislature were largely similar to those that had been pursued in France and Luxembourg. 48. The concept of “ Hege” (the management and protection of game stocks) dated back to the Third Reich and did not serve the protection of game. Recent scientific research had demonstrated that wild game was able to self ‑ regulate and that excessive hunting even increased the numbers of certain species. Road accidents involving wild game were in the majority of cases caused by hunting. Furthermore, hunting did not in any way respect the need to protect rare and endangered species. 49. In Germany, the hunt was in practice exercised as a leisure activity. Many species such as birds of prey were hunted without any ecological or economical necessity. Hunting could not be regarded as having a positive impact on issues of general interest. The ethical protection of animals was guaranteed by Article 20a of the Basic Law (see paragraph 25 above), while the right to hunt was not protected either by the Basic Law or by the Convention. 50. The statutory measures laid down by the hunting legislation were by no means necessary for the control of property in accordance with the general interest. This was demonstrated by the fact that the Federal Hunting Act contained numerous exemptions from the obligation to tolerate hunting, in particular regarding areas which did not belong to a hunting district (for example, enclaves within a private hunting district). Furthermore, the hunting authority could authorise suspension of the hunt. The Länder were entitled to create areas which were not subject to hunting rights and had done so, in particular by creating vast nature reserves in which hunting was prohibited or only permitted under very exceptional circumstances. 51. As the total number of hunters amounted to 358,000 and these hunted only occasionally in their spare time, it was materially impossible to subject the whole of German territory to the hunt. Furthermore, since the reform of the Federal system in Germany in 2006, the Länder were free to regulate hunting on their own initiative or even to abolish hunting altogether. 52. The applicant contested the Government’s argument that the situation in Germany differed from that encountered in France, Luxembourg or other member States. In Germany, the average population density per square kilometre was 230 inhabitants; in many Länder, it was far below this figure. The population density in the Land of Rhineland-Palatinate, in which the applicant’s plots were situated, was 203 inhabitants per square kilometre and was thus very close to the population density in Luxembourg (189 inhabitants per square kilometre). The applicant’s land was only two kilometres from the Luxembourg border. Numerous States Parties to the Convention did not have hunting associations and yet did not encounter problems deriving from excessive numbers of wild animals. 53. The measure was also disproportionate. The applicant had no effective means available to him by which to prevent hunting on his land. Furthermore, he had not received any financial compensation for the obligation to tolerate hunting on his property. In view of his ethical convictions, the psychological stress he suffered as a result of the hunt could not be made good by financial compensation, which in any event would only be minor. The applicant further relied on the Court’s argument concerning the irreconcilability of financial compensation with the ethical motives invoked by him (the applicant referred to Schneider, cited above, § 49). 2. The Government 54. The Government conceded that the obligation to tolerate hunting, which ran counter to the applicant’s convictions, had interfered with his rights under Article 1 of Protocol No. 1. Nevertheless, they pointed out that in Germany – in contrast to the situation in France and Luxembourg, where hunting rights were transferred completely to the hunting associations – the landowner remained the holder of the hunting rights and was thus not deprived of any possessions. He merely had to cede the right to practise hunting. Privately owned land, which was limited in quantity, had a particular social relevance which entitled the legislature to limit its use in the general interest. 55. Unlike the French Loi Verdeille, the German Federal Hunting Act did not pursue the goal of furthering the leisure activities of individual hunters or even of giving individuals the possibility of participating in hunting as a group, but pursued exclusively aims in the public interest. The German hunting legislation differed substantially from the French and Luxembourg laws. This was evident in the notion of “ Hege ”, which transcended the simple management of orderly hunting and encompassed general protection of game stocks. Hunting rights entailed an obligation to preserve varied and healthy game stocks while at the same time regulating the numbers of game in order to prevent game damage in agricultural and forest areas. Regulation of the quantity of wild game was particularly important in a densely populated country like Germany, for example in order to avoid the spread of animal diseases or damage caused by wild game on other property. 56. The system of hunting associations in Germany covered all areas, including State-owned property, and was internally consistent. In contrast to the situation in France, in Germany the principle of area-wide hunting applied across the entire Federal territory. It was essential that hunting be carried out in all suitable areas, as game did not stop at district borders and would retreat into areas which were exempt from hunting. Exempting individual areas from the hunting system would lead to hunting districts being fragmented into numerous smaller areas; this ran counter to the principle of uniform maintenance and protection of game stocks. 57. In contrast to the situation under Luxembourg law, a duty to practise hunting also existed on larger plots of land. Even though the owners of plots of more than 75 hectares were not de jure members of a hunting association, they were obliged to regulate game stocks and thus to practise hunting in the same way as the owners of plots belonging to a common hunting district. 58. There were only a few exceptions to this rule, all of which were based on overriding general interests. It was true that the hunt was suspended in those areas which did not belong to a hunting district. However, only a few areas fell within the scope of that provision and they were generally incorporated into other hunting districts. The hunting authority only granted a suspension of the hunt in exceptional cases and for reasons relating to the management and protection of game stocks. Even in nature reserves hunting was not generally excluded; the regulation of the hunt depended on specific conservation aims. The reform of the Federal system had not changed this situation, as all the Länder had opted to maintain the system of area-wide hunting. 59. The fact that other countries did not have hunting associations did not mean that landowners in those countries did not have to tolerate hunting on their properties, as other States also needed to find ways of fulfilling their international treaty obligations to protect species and animals. The natural system of self-regulation of wild game had ceased to function in the densely populated and heavily exploited regions of Central Europe. 60. The regulations set out in German law were necessary as there was no less intrusive means that would have been equally suited to achieving the legislature’s aims. A system based on voluntary participation could not ensure a solution covering the whole area. Furthermore, compulsory membership ensured that none of the persons concerned were excluded from the system. A State-run administrative hunt was likewise not an efficient system, since without the self-administering hunting associations the State would have to undertake considerably more – and more expensive – regulation and monitoring in order to achieve the objectives of hunting. 61. Even though the applicant had no realistic means of preventing hunting on his land, this did not impose a disproportionate burden on him. The obligation to tolerate hunting was only of relevance during the hunting season. In addition, German law provided for a number of different forms of compensation which entirely made up for the interference with the applicant’s property rights. 62. Firstly, unlike in France, the landowners were entitled to a share of the profits derived from the leasing of the hunting rights. However, the applicant had never claimed his share from the hunting association. The Government did not subscribe to the view expressed by the Court in the Schneider judgment that ethical convictions could not be balanced against financial compensation (see Schneider, cited above, § 49). Article 1 of Protocol No. 1 protected the enjoyment of property without being subjected to external limitations. It did not, however, in any sense protect ethical convictions, still less authorise property owners to use their rights to political ends as envisaged by the applicant. 63. Secondly, the applicant had the possibility of participating in the decision-making process within the hunting association with the aim of convincing the majority of members of his personal point of view and having this incorporated within the framework of the applicable law. 64. Furthermore, the interests of landowners were safeguarded to the greatest extent possible by the Federal Hunting Act, which imposed on persons participating in the hunt the duty to respect the legitimate interests of landowners and made them liable for any damage caused by the hunt. 65. The limitations imposed on hunting took into account ethical considerations, for example by prohibiting the use of certain kinds of ammunition. The applicant remained free to take measures to protect wildlife on his property. Furthermore, it was appropriate to impose on persons engaging in hunting the duty to catch, take care of and, if necessary, kill seriously injured game because only hunters had the necessary training allowing them to assess the situation and to take the necessary measures. 3. The third-party interveners (a) German association for the protection of hunting ( Deutscher Jagdschutz ‑ Verband e. V., DJV) 66. The DJV – a private association representing the interests of hunters in Germany – emphasised the significance of the outcome of the instant proceedings both for the entire hunting system and for hunters’ interests. In order to be allowed to hunt, hunters had to prove extensive knowledge in the relevant spheres and had to adhere to the highest ethical standards regarding the protection of animals and nature conservation. The specific situation in Germany, in particular its dense population and the intensive cultivation of its land, made it extremely difficult to regulate game populations. 67. The principle of area-wide hunting was implemented consistently in Germany. Areas excluded from hunting districts under section 6(1) of the Federal Hunting Act comprised less than 0.01 % of all land. Exclusion was only temporary and the hunting authorities were required to incorporate such areas rapidly into neighbouring hunting districts. There was currently no known case in which an application to suspend the hunt temporarily had been approved by the higher hunting authority of the Land of Rhineland ‑ Palatinate, where the applicant’s property was situated. 68. If certain areas were excluded from the hunt, there would inevitably be considerable concentrations of wild animals on those properties where hunting was not permitted. Fleeing and injured animals could not be followed into these areas, and it would become virtually impossible to practise hunting effectively and provide relief to suffering animals. Summing up, the DJV considered that it would no longer be possible to ensure the proper regulation of game populations, resulting in severe disruption to the ecological balance. Furthermore, hunters would no longer be prepared to assume liability for damage caused by wild game. (b) Federation of hunting associations and owners of private hunting districts ( Bundesarbeitsgemeinschaft der Jagdgenossenschaften und Eigenjagdbesitzer, BAGJE) 69. The BAGJE – a federation of all State/regional associations and State-sponsored committees of property owners possessing hunting rights – emphasised the significance of the Court’s ruling in the instant case for the thousands of landowners they represented. In Germany, the system of hunting associations was a successful model of self-government and conflict prevention by landowners. 70. The question whether or not hunting was allowed had never been part of the definition of property. The legislature, by regulating the exercise of hunting, did not interfere with landowners’ property rights, but merely defined the meaning of property. 71. The BAGJE further pointed out that a hunting association was not made up of hunters, but comprised all property owners of smaller plots of land. It was not up to the hunting association to decide whether to exercise the hunt on their property. The advantages conferred by membership in a hunting association could not be reduced to the pro rata compensation provided, but also comprised compensation paid to landowners for any damage caused by wild game on their property. This could amount to several thousand euros per year even for the owner of a small plot of land. C. The Grand Chamber’s assessment 1. Interference with the applicant’s rights under Article 1 of Protocol No. 1 to the Convention 72. The Grand Chamber observes that the Government did not contest the applicant’s assertion that the obligation to allow hunting on his property interfered with his right to the peaceful enjoyment of his property (see paragraph 54 above). The Grand Chamber endorses this assessment and reiterates that the obligation for individuals to tolerate the presence of armed men and hunting dogs on their land constitutes a restriction on the free exercise of their right to use their property (see Chassagnou and Others, cited above, § 74, and Schneider, cited above, § 44). 2. Compliance with the conditions laid down in the second paragraph 73. The interference in question is to be analysed in the light of the second paragraph of Article 1 of Protocol No. 1. The Grand Chamber considers that the impugned hunting legislation can be said to constitute a means of controlling the use of property in accordance with the general interest (compare Schneider, cited above, § 41). (a) General principles 74. It is well-established case-law that the second paragraph of Article 1 of Protocol No. 1 must be construed in the light of the principle laid down in the first sentence of the Article (see, among other authorities, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98; Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004 ‑ V; and Brosset-Triboulet and Others v. France [GC], no. 34078/02, § 80, 29 March 2010). Consequently, a law interfering with the right to the peaceful enjoyment of possessions must achieve a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The search for this balance is reflected in the structure of Article 1 as a whole, and therefore also in the second paragraph thereof: there must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (see Chassagnou and Others, cited above, § 75; Schneider, cited above, § 45; and Depalle v. France [GC], no. 34044/02, § 83, ECHR 2010). (b) Conclusions drawn by the Court in the cases of Chassagnou and Schneider 75. The Court examined for the first time in Chassagnou, cited above, whether the obligation to tolerate hunting on one’s land was compatible with the principles enshrined in Article 1 of Protocol No. 1. 76. In that case the Grand Chamber held that the French Loi Verdeille of 1964 pursued in particular the legitimate aims of avoiding unregulated hunting and encouraging the rational management of game stocks. According to that law, the applicants could not avoid the compulsory transfer of hunting rights and no measure of compensation was contemplated for landowners who, like the applicants, were opposed to hunting and did not wish to derive any advantage or profit from the right to hunt. The Court also noted that this was an exception to two principles: that ownership means the right to enjoy and dispose of things in the most absolute manner, and that no one may hunt on land belonging to another without the owner’s consent. Moreover, automatic membership of municipal hunters’ associations applied only in 29 of the 93 French départements concerned, such associations had been set up in only 851 municipalities and the Loi Verdeille applied only to landholdings less than 20 hectares in area. The above considerations led the Court to the conclusion that the impugned compulsory-transfer system had placed the applicants in a situation which upset the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others could make use of them in a way which was totally incompatible with their beliefs imposed a disproportionate burden which was not justified under the second paragraph of Article 1 of Protocol No. 1 (see Chassagnou and Others, cited above, §§ 79 and 82-85). 77. These findings were subsequently confirmed by a Chamber of the Court in the case of Schneider, cited above, which was lodged by the owner of a small landholding located in Luxembourg. The Chamber noted that, unlike the Loi Verdeille, the law in Luxembourg provided for financial compensation to be paid to the landowner; the Chamber did not, however, consider this fact to be decisive, as the ethical convictions of an opponent of hunting could not be reasonably balanced against an annual fee for the loss of the use of the property. In any event, the amount proposed (EUR 3.25 per year) could not be seen as fair compensation for the applicant (see Schneider, cited above, § 49). (c) Consistency of case-law 78. The Court reiterates that, while it is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases. However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in Contracting States and respond, for example, to any evolving convergence as to the standards to be achieved (see, among many other authorities, Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR 2001 ‑ I, and Bayatyan v. Armenia [GC], no. 23459/03, § 98, ECHR 2011, and the case ‑ law cited in those judgments). 79. The Court notes that, since the adoption of the Court’s judgments in the cases of Chassagnou and Schneider (both cited above), various Contracting States have amended their respective legislation or modified their case-law in order to comply with the principles set out in these judgments (see paragraph 36 above). 80. That being so, the Court cannot but reaffirm the principles set out in the Chassagnou and Schneider judgments, notably that imposing on a landowner opposed to the hunt on ethical grounds the obligation to tolerate hunting on his or her property is liable to upset the fair balance between protection of the right of property and the requirements of the general interest and to impose on the person concerned a disproportionate burden incompatible with Article 1 of Protocol No. 1. (d) Application of these principles to the instant case 81. It remains to be ascertained whether, as argued by the Government, the provisions of the German Federal Hunting Act, as applied in the instant case, differ in a relevant way from the factual and legal situation in France and Luxembourg described in the cases of Chassagnou and Schneider, cited above, and, if so, whether the differences in question are substantial enough to justify the conclusion that Article 1 of Protocol No. 1 has not been breached in the particular circumstances of the present case. 82. In doing so, the Court will examine in turn the aims of the legislation in issue, its territorial application, the possible exceptions to compulsory membership and the issue of compensation. (i) General aims 83. The Court observes, at the outset, that the aims of the German hunting legislation are laid down in section 1(1) and (2) of the Federal Hunting Act (see paragraph 27 above). These include the management of game stocks, which, in turn, is aimed at maintaining varied and healthy game populations at a level compatible with care of the land and with the prevailing cultural conditions and at preventing damage caused by game. The Court further takes note of the Government’s submissions to the effect that hunting is aimed also at preventing the spread of animal diseases. Similarly, one of the main objectives of the French Loi Verdeille was to facilitate “rational organisation of hunting, consistent with respect for the environment” (see Chassagnou and Others, cited above, § 78). Comparable objectives were pursued by the Luxembourg law, which was aimed at “rational management of game stocks and preservation of the ecological balance” (see Schneider, cited above, § 34). 84. The Court further observes that the Federal Hunting Act, in contrast to the French Loi Verdeille, does not appear to be primarily aimed at serving hunters’ interests (compare Chassagnou and Others, cited above, § 106), but requires private hunters to contribute to the achievement of objectives in the public interest (see paragraph 55 above). Notwithstanding this, the German hunting legislation confers certain rights on persons who hunt, such as the right to pursue and to acquire ownership of the game (see section 1(1) of the Federal Hunting Act, quoted in paragraph 27 above). In the Court’s view, the fact that the Hunting Act entails obligations does not, in any event, alter the fact that hunting is primarily carried out in Germany by private individuals as a leisure activity, just as used to be the case in France and Luxembourg. 85. Having regard to the above, the Court concludes that the aims pursued by the German legislation do not differ significantly from those pursued by the French and Luxembourg laws previously examined by the Court. (ii) Territorial scope and exemptions from membership of hunting associations 86. The Grand Chamber further notes that the Chamber and the Government attached particular weight to the argument that the German hunting legislation applied nationwide (see paragraphs 43 and 56 above). The Court notes that the French Loi Verdeille applied to 29 out of 93 départements concerned, with the possibility of its application being extended to the whole of French territory (see Chassagnou and Others, cited above, §§ 78 and 84). In Luxembourg and Germany the legislation applied – in principle – nationwide. However, following a reform of the German Federal system which entered into force in 2006, the German Länder now have the possibility to regulate hunting by departing from the Federal Hunting Act (see Article 72 of the Basic Law, quoted in paragraph 25 above), although they have hitherto opted to maintain the system of area ‑ wide hunting (see paragraph 58 above). 87. All three laws provide or provided for territorial exceptions for enclosed areas. Under section 6 of the Federal Hunting Act, hunting is suspended on land which does not belong to a hunting district (enclaves, see paragraph 28 above), notwithstanding the possibility of incorporating this land into an existing hunting district (see paragraphs 58 and 67 above). In France and Germany, further exceptions were/are made for nature reserves and game reserves (see Chassagnou and Others, cited above, § 58, and paragraph 31 above), and in Luxembourg, houses and gardens were exempted (see Schneider, cited above, § 19). In France and Luxembourg, roads and railways were also excluded from the hunting districts (see Chassagnou and Others, cited above, § 46, and Schneider, cited above, § 19). 88. As to personal exemptions, the French laws excluded State property, and owners of larger plots were not required to be members of a hunting association (see Chassagnou and Others, cited above, § 116). It appears, furthermore, that the owners of larger plots were not obliged to hunt or to tolerate hunting on their property (see Chassagnou and Others, cited above, § 92). The Luxembourg law excluded all private property owned by the Crown (see Schneider, cited above, § 53). The German hunting legislation is applicable to private and public property alike (see paragraph 30 above). There is, however, some differential treatment depending on the size of the plot of land (see paragraphs 29 and 30 above). 89. Having regard to the above, the Court finds that the differences between the relevant laws on these issues cannot be considered decisive. The nationwide application of the law in Luxembourg did not prevent the Court from finding a violation of Article 1 of Protocol No. 1 in the case of Schneider. The same conclusion could be drawn in Germany because, since 1 September 2006, the Länder have the power to legislate in this sphere and are now free to enact different rules on hunting. It can be inferred from this that hunting does not necessarily have to be regulated in a uniform way throughout the Federal territory. (iii) Compensation granted to landowners 90. As to the compensation awarded to landowners in return for the use of their land for hunting, the Court observes that the French law did not grant landowners who were opposed to hunting any financial compensation for being obliged to tolerate hunting, but allowed every member of the hunting association to hunt throughout the common hunting district (see Chassagnou and Others, cited above, § 82). Conversely, both the Luxembourg and the German legislation provided/provide for members of the association to receive a proportionate share of the profits from the leasehold. In Luxembourg, the specific landowner in question was entitled to EUR 3.25 per year (see Schneider, cited above, § 49). In Germany, compensation is granted only when explicitly requested and appears to be, in any event, very limited (see paragraphs 53 and 62 above). The Court further notes that landowners in Luxembourg and Germany had/have the right to be compensated for any damage caused by game or by the hunt (see Schneider, cited above, § 37, and paragraph 32 above). 91. It appears that the applicant in the present case did not request the compensation to which he was entitled under German law for being required to tolerate hunting on his land. In the Court’s view, however, it does not sit comfortably with the very notion of respect for an ethical objection to require the objector to approach the relevant bodies for compensation in respect of the very matter that forms the basis for his objection. Such an act could be considered, in itself, to be incompatible with the ethical convictions held by the applicant (see paragraphs 12 and 53 above). Moreover, the Court has misgivings of principle about the argument that strongly-held personal convictions could be traded against annual compensation for the restrictions on the use of the property, which in any event appears to be very limited (see, mutatis mutandis, Schneider, cited above, § 49). 92. Lastly, the Court observes that the Federal Hunting Act leaves no room for the ethical convictions of landowners who are opposed to hunting to be taken into account. In the Court’s view, the documents produced by the Government (see paragraph 24 above) – according to which the applicant’s land was leased to a farmer who used the land for raising cattle destined for slaughter – are not sufficient to cast doubt on the seriousness of the applicant’s convictions, as opposition to hunting cannot be equated with opposition to the slaughtering of animals for human consumption. Moreover, in the light of the material before it, the Court sees no reason to call into question the truthfulness of the applicant’s assertion that he never saw any cattle on his land, never gave permission for the land to be used in that way and would take legal action to prevent or stop any abuse. (iv) Conclusion 93. To sum up, the Court observes that all three legal systems pursued or pursue similar objectives and provided, or continue to provide, for certain territorial exceptions of varying degrees. The issue of compensation is/was regulated in a very similar way in Germany and Luxembourg, while the French system differed in this respect. Under these circumstances, the Court is not convinced that the situation encountered in Germany is substantially different from those examined by the Court in the cases of Chassagnou and Schneider. Therefore, the Court sees no reason to depart from its findings in those two judgments, namely that the obligation to tolerate hunting on their property imposes a disproportionate burden on landowners who, like the applicant in the present case, are opposed to hunting for ethical reasons. 94. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 95. The applicant submitted that the Federal Hunting Act discriminated against him in two ways. Firstly, he was discriminated against vis-à-vis owners of real property which did not belong to a hunting district, such as enclaves, which were not subject to hunting rights. Secondly, the relevant provisions discriminated against the owners of smaller landholdings. He relied on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The Chamber judgment 96. The Chamber observed that, under German law, owners of larger plots were not allowed to suspend the hunt completely, but had to fulfil the same obligations regarding the management of game stocks as the hunting associations. A difference in treatment between the owners of smaller and larger plots existed only in so far as the latter remained free to choose the manner in which they fulfilled their obligation under the hunting laws, whereas the former merely retained the right to participate in the decision ‑ making process within the hunting association. The Chamber considered that this difference in treatment was sufficiently justified by the need to pool smaller plots in order to allow area-wide hunting and thus to ensure effective management of game stocks. The Chamber further considered that the fact that the owners of areas which did not belong to a hunting district, such as enclaves, were treated differently was due to the specific situation regarding the plots in question, which justified a difference in treatment (see Chamber judgment, §§ 68-70). Accordingly, the Chamber did not find a violation of Article 14 in conjunction with Article 1 of Protocol No. 1. B. The parties’ submissions 1. The applicant 97. According to the applicant, the differentiation between owners of larger and smaller landholdings favoured “rich” landowners and did not satisfy the requirements of Article 14. The discrimination was not averted by the fact that the owners of large landholdings had a duty to hunt, as this duty related only to a small proportion of the animals liable to be hunted, and the landowners remained free to decide which species to hunt and how the hunt should be exercised, for example by choosing their preferred hunting method. They could even decide to suspend the hunt and to contest before the courts any order to carry out hunting. According to the applicant, no effective checks were carried out to ensure that the owners of private hunting districts actually fulfilled their obligations with regard to hunting. 98. Furthermore, the owners of private hunting districts were not obliged to tolerate either the erection of hunting facilities or the presence of strangers on their property. In addition, the owners of small plots were deprived of the possibility of observing and taking care of wildlife in its natural habitat. It followed that the transfer of the exercise of hunting rights went beyond what was necessary to prevent damage caused by wild game. 2. The Government 99. The Government submitted that the applicant had not been treated differently from any other landowner with regard to his rights under Article 1 of Protocol No. 1. In contrast to the French and Luxembourg laws, the German legislation ensured that all landowners were subject in equal measure to the duty to hunt. Owners of plots of more than 75 hectares retained the right to hunt but were not allowed to turn their land into hunting-free areas. 100. Furthermore, the owners of larger plots were not free to choose which species of wild game to hunt. Under the Federal Hunting Act, the shooting of game was regulated in order to ensure that a healthy population of all animal species remained in appropriate numbers and that the legitimate interests of agriculture, forestry and fishery were safeguarded. Thus, shooting was not permitted in an arbitrary way but had to be planned and carried out in a sustainable manner. 101. The erection of hunting facilities ensured that hunting could be carried out in conformity with the need to protect animals. The owners of private hunting districts who had leased out their right to hunt had to tolerate the erection of such facilities in the same way as the owners of smaller plots. Lastly, the Government submitted that any difference in treatment was justified. In order to maintain and protect game stocks by means of area-wide hunting, it was necessary to join smaller plots together. The necessary minimum area of 75 hectares had long proved its worth in Germany when it came to effective game management. 3. The third-party interveners 102. The DJV supported the Chamber’s argument that the difference in treatment between the owners of smaller and larger plots, whereby the latter remained free to choose in which way to fulfil their obligations under the hunting legislation, was justified by the necessity of allowing area-wide hunting and thus ensuring effective management of game stocks. 103. The BAGJE emphasised that the owners of private hunting districts were obliged to hunt on their own or to lease the rights to a hunter. All owners of hunting grounds were obliged to fulfil the annual shooting quotas approved by the administrative authorities and had to inform the competent authorities each year of the total number of animals shot. They were also obliged to comply with administrative orders regarding the exercise of hunting, for instance, orders to reduce the game population in the event of a risk of the spread of animal diseases. Unlike the situations examined by the Court in France and Luxembourg, therefore, the German legislation did not confer an advantage on the owners of private hunting grounds. C. The Grand Chamber’s assessment 104. The Grand Chamber reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the Protocols, since it protects individuals, placed in similar situations, from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention has been invoked both on its own and together with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45, and Chassagnou and Others, cited above, § 89). 105. In the present case, having regard to its findings under Article 1 of Protocol No. 1 (see paragraphs 93-94 above), the Court considers that there is no need to give a separate ruling on the applicant’s complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (see Schneider, cited above, § 55). IV. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 106. The applicant submitted that his obligation to tolerate hunting on his property violated his right to freedom of thought and conscience under Article 9 of the Convention, which provides: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” A. The Chamber judgment 107. The Chamber did not find it necessary to determine whether the applicant’s complaint fell to be examined under Article 9. With regard to its findings under Article 1 of Protocol No. 1, it considered any potential interference with the applicant’s rights under Article 9 to have been necessary in the interest of public safety, for the protection of public health and for the protection of the rights of others. It followed that there had been no violation of that provision (see Chamber judgment, § 87). B. The parties’ submissions 1. The applicant 108. According to the applicant, the Federal Constitutional Court had held that his convictions as an opponent of hunting attained a certain level of cogency, cohesion and importance and therefore deserved consideration in a democratic society. His compulsory membership of the hunting association had deprived him of the possibility of acting in accordance with his moral beliefs. 109. The Federal Constitutional Court’s argument according to which no one could derive from the right to freedom of conscience a right to have his or her own ethical persuasions made the yardstick of the entire legal system (see paragraph 20 above) failed to appreciate the degree and significance of individual freedom of conscience, which was “sacrificed” to the right of third parties to hunt, a right that was protected neither by the German Constitution nor by the Convention. Compulsory membership of a hunting association increased the pressure to which a person was subjected when obliged to engage in activities contrary to his or her views. 110. The interference was not justified under Article 9 § 2 of the Convention. In view of the significance of the public interest in the practice of hunting, which was at best low, it was necessary to grant priority to the applicant’s right to freedom of conscience over the right of third parties to carry out hunting on his land. 2. The Government 111. According to the Government, the applicant’s rights under Article 9 had not been violated. They emphasised that the applicant was not obliged to hunt or to be involved in any activity which was not compatible with his convictions. The decision to permit hunting was not taken by the applicant, but by the law in the general public interest. The question was solely whether the applicant, by relying on Article 9 of the Convention, could prevent third persons from hunting on his property. 112. Relying on the Court’s decision in the case of Pichon and Sajous v. France (no. 49853/99, ECHR 2001-X), the Government considered that Article 9 did not confer on those concerned the right to impose their ethical, religious or moral convictions on others, especially if they could also express their ideas by other means. The applicant remained free to publicly enlist support for his moral views by taking part in the democratic process. 113. According to the provisions of the Federal Hunting Act, ownership of land did not comprise the power to ban third parties from entering that land in order to carry out hunting in the general interest. In that regard it was worth noting that the Convention institutions had expressly held that applicants could not invoke Article 9 in order to avoid paying taxes on the grounds that those taxes were used to fund military actions (the Government referred to C. v. the United Kingdom, no. 10358/83, Commission decision of 15 December 1983, Decisions and Reports (DR) 37, p. 142) and that the public interest in the protection of health was sufficient to justify the duty to wear a motorbike helmet, even if this obligation stood in the way of a Sikh’s obligation to wear a turban (the Government cited X. v. the United Kingdom, no. 7992/77, Commission decision of 12 July 1978, DR 14, p. 234). 114. The Government further submitted that the applicant had leased his land to a farmer who kept on the property cattle destined for slaughter (see paragraph 24 above). According to the Government, this shed an interesting light on the applicant’s conscience as far as the killing of animals was concerned. Furthermore, the applicant had never tried to find a way out of the alleged conflict of conscience, for instance by selling the plots of land in question and buying land in an urban area or by trying to influence the decision-making process within the hunting association in accordance with his ethical convictions. 3. The third-party interveners 115. The DJV submitted that under German law the right to hunt on small properties was unrelated to the ownership of property. The transfer of the hunting rights over small landholdings to the hunting association was performed by the legislature. There was thus no need for individual landowners to transfer any of their rights and they could not experience a moral conflict in that respect. 116. The BAGJE submitted that German hunting associations – unlike those in Luxembourg– were not authorised to decide whether hunting should be carried out on their hunting grounds. The obligation to hunt was a purely legislative decision which was independent of membership in a hunting association. It followed that membership in a hunting association did not lead to an obligation to tolerate hunting liable to infringe landowners’ freedom of conscience. 117. The European Centre for Law and Justice (ECLJ) stressed that the Court had acknowledged that Article 9 of the Convention encompassed a right to conscientious objection in the case of Bayatyan (cited above, § 111) regarding military service, and in the case of R.R. v. Poland (no. 27617/04, § 206, ECHR 2011) regarding the performing of abortions by medical professionals. Furthermore, in the judgments in Chassagnou (cited above, § 117) and Schneider (cited above, § 82), the Court had implicitly recognised the right to conscientious objection to hunting, without giving an express ruling under Article 9. Where conscientious objection came into play, the State was under a positive obligation to find solutions capable of accommodating the competing interests in order to reconcile the requirements of individual conscience with the public interest. 118. According to the ECLJ, the obligation to tolerate hunting on one’s land undoubtedly constituted interference with freedom of conscience. Bearing in mind that blanket opposition to hunting was somewhat irrational and the fact that the interference with the applicant’s freedom of conscience was largely confined to his having passively to “tolerate” hunting, the ECLJ considered that there had been a possible, but not clear, violation of Article 9 of the Convention. Conversely, the obligation to join a hunting association constituted interference with the negative right of freedom of conscience. In other words, the applicant was forced to act against his conscience, in breach of his right to conscientious objection under Article 9. C. The Grand Chamber’s assessment 119. Having regard to its findings under Article 1 of Protocol No. 1 (see paragraphs 93 and 94 above), the Grand Chamber considers that it is not necessary to examine separately the complaint under Article 9 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 120. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 121. The applicant claimed EUR 10,000 in respect of pecuniary and non-pecuniary damage. He pointed out that he had sacrificed a large amount of his free time for the conduct of the proceedings before the domestic courts. 122. The Government submitted that the applicant had failed to specify his claims and to submit documentary evidence supporting them. 123. The Court notes that the applicant did not supply any evidence capable of supporting his claims for pecuniary damage. It is therefore not appropriate to award any compensation under that head. The Court considers, however, that on account of the violations found the applicant must have sustained a certain degree of non-pecuniary damage, which it assesses, on an equitable basis, at EUR 5,000. B. Costs and expenses 124. Relying on the relevant bills of costs, the applicant also claimed a total of EUR 3,861.91 (including VAT) for the translation expenses incurred before the Court. 125. The Government did not submit any comments. 126. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). 127. Regard being had to the documents in its possession, the Court considers it reasonable to award in full the sum claimed by the applicant in respect of costs and expenses (EUR 3,861.91). C. Default interest 128. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 1 (protection of property) of Protocol No. 1 to the Convention, finding that the obligation to tolerate hunting on their property imposed a disproportionate burden on landowners who were opposed to hunting for ethical reasons. |
756 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitutional, statutory and substatutory provisions 1. Constitutional provisions 45. Article 23 reads: “Property shall be inviolable. The rights of ownership shall be protected by law. Property may be taken only for the needs of society according to the procedure established by law and shall be justly compensated for.” 46. Relevant part of Article 30 reads: “A person whose constitutional rights or freedoms are violated shall have the right to apply to a court. [...]” 47. Relevant part of Article 47 reads: “The subsurface, as well as the internal waters, forests, parks, roads, and historical, archaeological, and cultural objects of state importance, shall belong by right of exclusive ownership to the Republic of Lithuania. [ ... ]” 48. Article 54 reads: “The State shall take care of the protection of the natural environment, wildlife and plants, individual objects of nature, and areas of particular value, and shall supervise the sustainable use of natural resources, as well as their restoration and increase. The destruction of land and subsurface, the pollution of water and air, radioactive impact on the environment, as well as the depletion of wildlife and plants, shall be prohibited by law. ” 2. Territorial Planning legislation, in particular on Curonian Spit 49. On 23 April 1991 the Supreme Council adopted resolution no. I ‑ 1244, establishing the Curonian Spit National Park, designated to protect the most valuable landscape and ethno - cultural heritage. 50. Article 3 § 2 of the Law on Territorial Planning provides that when identifying the specific purposes of land, the rights and interests of owners of land and other immovable property have to be taken into account. Article 37 § 2 of the Law on Territorial Planning provides that decisions of a planning authority are amenable to appeal within ten working days to the relevant supervisory territorial planning authority. 51. Article 13 § 2 of the Law on Protected Areas proscribes the carrying out of any activity that could harm the protected areas and buildings sited thereon, as well as the recreational resources in the State parks. It also proscribes the carrying out of construction work in areas that are not indicated in the development plans, except in areas where there are remains of former farmsteads. Article 28 § 6 of the Law on Protected Areas provides that the Government will approve the demarcation plans of regional parks and State reserves and/or their zones; the management plans of the protected areas are approved by the Government or by bodies authorised to do so by the Government. 52. Article 6 § 1 (2) of the Law on Land provides that the coastal zone (including the Curonian Spit National Park) is exclusively owned by the State. 53. Government Resolution No. 1269 of 19 December 1994 established the Development Plan for the Curonian Spit National Park ( Dėl Kuršių nerijos nacionalinio parko planavimo schemos (generalinio plano)) and provided that decisions as to ownership and use of former military buildings of the Russian Federation in Juodkrantė would be made by the Government (Point 12). The main statements of the development plan were published in the Official Gazette. The whole development plan was not published as it consisted of 1,400 pages and it was technically impossible to publish it in the Official Gazette (see paragraph 69 below). The development plan indicated that former military buildings situated in the dunes had to be removed ( nukeliami ) and the natural environment had to be fully restored. 54. Government Resolution No. 702 of 6 June 2012 on the Curonian Spit National Park Management Plan ( Dėl Kuršių nerijos nationalinio parko tvarkymo plano patvirtinimo ), which revoked the Government Resolution No. 1269 of 1994, provided that an area of land in Juodkrantė would be designated as a “reserve territory”. The purpose of that area would be to compensate for possible losses by lawful owners of buildings that had to be demolished in order to protect public interest and to arrange damaged areas (Point 9.4.2.17). The applicant company ’ s buildings remained indicated as to be demolished in the graphic scheme of the Resolution. 3. Law on Construction 55. At the material time, Article 2 § 20 provided that major repair work to a building was a form of construction, since it was aimed at renovating the main structure without changing its external measurements. 56. At the material time, Article 6 § 1 (2) provided that when constructing or maintaining a building, other legislation had to be taken into account, including laws regulating the use of protected areas. 57. Article 40 §§ 4 and 5 and Article 41 § 1 require users of a building to organise and/or conduct technical maintenance of that building; to repair, or demolish the building if it is dangerous to people ’ s lives or health or to the environment; and to appoint a person responsible for the maintenance of the building. 4. Legislation on referral of the issue to the Constitutional Court 58. According to Article 102 § 1 of the Constitution and Article 63 § 3 of the Law on the Constitutional Court, the Constitutional Court shall decide whether the laws and other acts of the Seimas are in conflict with the Constitution, and whether acts adopted by the Government are in conflict with the Constitution or laws (also Article 105 §§ 1 and 2 of the Constitution). 59. Article 107 § 1 of the Constitution provides that a law (or part thereof) or another act (or part thereof) of the Seimas, an act (or part thereof) of the Government may not be applied as from the day of the official publication of the decision of the Constitutional Court that the legislation in question (or part thereof) is in conflict with the Constitution. 60. The courts have the right to apply to the Constitutional Court concerning the conformity of acts of the Government with the Constitution and laws (Article 106 § 3 of the Constitution and Article 65 § 3 of the Constitutional Court). Judges may not apply any laws that are in conflict with the Constitution. If there are grounds to believe that a law or another legal act that should be applied in a concrete case is in conflict with the Constitution, the judge shall suspend consideration of the case and apply to the Constitutional Court, requesting that it decide whether the law or legal act in question is in compliance with the Constitution (Article 110 §§ 1 and 2 of the Constitution and Article 67 § 1 of the Law on the Constitutional Court). 61. Article 4 § 2 of the Law on Administrative Proceedings provides that if there are grounds to believe that a certain law or other applicable legislation might be contrary to the Constitution, the court must suspend the proceedings and refer the matter to the Constitutional Court. 62. At the material time, Article 16 § 1 of the Law on Administrative Proceedings provided that the administrative courts were not competent to hear cases that concerned the area of competence of the Constitutional Court, the civil courts or other specialised courts. Article 16 § 2 provided that it was not within the area of competence of the administrative courts to examine the activities of, among other institutions, the Government (as a collegial institution) (see also paragraph 75 below). 5. Civil Code 63. The parties cannot, by their agreement, change, restrict or annul the validity and application of the imperative legal norms, despite the law – national or international – that sets those norms (Article 6.157 § 1). 64. Damage caused by unlawful acts of institutions of public authority must be compensated by the State from the means of the State budget, irrespective of the fault of a concrete public servant or other employee of public authority institutions. Damage caused by unlawful actions of municipal authority institutions must be redressed by the municipality from its own budget, irrespective of its employee ’ s fault. Civil liability of the state or municipality, subject to this Article, shall arise where employees of public authority institutions fail to act in the manner prescribed by law for these institutions and their employees (Article 6.271 §§ 1 and 4). 6. Other pertinent legislation 65. Article 9 § 5 of the Law on Land provides that State land may be leased by public auction to the person who offers the largest lease payment. 66. Article 37 § 2(1) of the Law on Administrative Proceedings provides that a claim will not be accepted unless it is subject to examination before the administrative courts. 67. Article 52 1 § 1 of the Law on Administrative Proceedings provides that a friendly settlement agreement has to be in accordance with the law, in the interests of the public, and in compliance with the rights and interests of third parties. Article 52 1 § 3 provides that the court will not approve a friendly settlement agreement if it is contrary to the requirements set out in Article 52 1 § 1. B. Relevant domestic case-law 1. Case-law of the Constitutional Court (a) On the Curonian Spit National Park, protected areas and property 68. On 14 March 2006 the Constitutional Court held that taking into account the importance of internal waters, forests, parks of national significance and the obligation to preserve them for future generations, the State was obliged by the Constitution to take care of such objects and to preserve them. 69. On 27 June 2007 the Constitutional Court gave a ruling on publishing the development plan for the Curonian Spit National Park, adopted by the Government Resolution No. 1269 of 19 December 1994. The Constitutional Court held: “By a letter of 21 June 1999 the President and the Secretary General of the Lithuanian National Commission for UNESCO proposed to include the Curonian Spit on the World Heritage List (up to then, it had been included on the Tentative World Heritage List). On 29 November 2000 the Curonian Spit was included on the UNESCO World Heritage List, subject to the following criterion: “The Curonian Spit is an outstanding example of a landscape of sand dunes that is under constant threat from natural forces (wind and tide). After disastrous human interventions that menaced its survival the Spit was reclaimed by massive protection and stabilization works begun in the 19th century and still continuing to the present day.” ... ...[ T ] he State of Lithuania has always treated and treats the Curonian Spit as a unique landscape created by nature and man – an area which should be protected and in respect of which specific legal protection has to be put in place; this is a universally known fact. ... The formation of the landscape in the Curonian Spit is still taking place; the social role of modern society, which is related to the traditional lifestyle and in which the evolutionary process is still in progress, is still active. The Curonian Spit reflects the material changes which have been taking place over the course of many decades and which are closely related to the interaction of natural forces and human beings. In the Curonian Spit, one can still see the remains of landscape where evolutionary processes have ended. There is the ethnographic heritage of the Curonian tribe, which lived in the Curonian Spit for a long time (and which is now extinct). In the relevant documents, the following examples of cultural heritage in the Curonian Spit have been noted: fishermen ’ s settlements where the interaction of man and nature is, from an ethno-cultural, historical and aesthetic point of view, of exceptional universal value; a wealth of unique works of architecture which, from an artistic and scientific point of view, were of exceptional value; and archaeological sites which are especially significant, owing to villages being swallowed up by moving sand. The particular importance of the Curonian Spit is also reflected by natural and cultural heritage, which is woven together in a picturesque manner and which is related not only to material or spiritual aspects, but also to the experience gained by every generation of the local people. This helps to rebuild the lost natural ecosystems of the Curonian Spit. ... ... The legal instruments of the Republic of Lithuania ... enshrine the fundamental provision that the Curonian Spit National Park will be managed in accordance with the development plan... for the Curonian Spit National Park, approved by the Government. Thus, no decisions relating to the management of the territory of the Curonian Spit National Park... can be adopted without taking account of the scheme approved by the Government, and decisions cannot be in conflict with the provisions of the scheme... Otherwise, not only would the identity and integrity of the Curonian Spit as a unique landscape created by nature and man be violated, whereas it should be protected, but one would also violate... inter alia, paragraph 1 of Article 54 of the Constitution providing that the State must take care of the protection of the natural environment, wildlife and plants, individual natural objects and areas of particular value, and must supervise the sustainable use of natural resources, their restoration and development; and paragraph 3 of Article 53 providing that the State and each person must protect the environment from harmful influences. The international obligations of the Republic of Lithuania would also clearly be violated. The technical possibilities of preparing digital versions of the drawings provided in the development plan of 19 December 1994 only appeared in 1996-98 ... All those who wanted to familiarise themselves with the development plan could do so, in fact many people had applied to the Protected Areas Service and copies of the development plan had been prepared free of charge ... Moreover, when issuing the conditions of the detailed plan, references had always been made to the development plan, and there was no information that there had been any legal disputes regarding the accessibility of the plan. ... If a certain part of a legal act is not published in an official journal, it has to be clear from the part that had been published that other parts have not been published; it also has to be clear when people can familiarise themselves with the unpublished part; the accessibility of the unpublished part has to be ensured. ... The fact that the development plan has not been published as a whole in the official journal does not give grounds to assert that it has not been published at all or that it has been published unofficially, and that access to it has not been ensured ( Vien tai, kad Vyriausybės 1994 m. gruodžio 19 d. nutarimu Nr. 1269 „ Dėl Kuršių nerijos nacionalinio parko planavimo schemos ( generalinio plano )“ patvirtinta Kuršių nerijos nacionalinio parko planavimo schema ( generalinis planas ) nebuvo visa paskelbta „ Valstybės žiniose “, savaime neduoda pagrindo teigti, kad Schema buvo „ nepaskelbta “ arba „ paskelbta “ neviešai, neoficialiai, kad jos prieinamumas teisės subjektams nebuvo užtikrintas ).” 70. On 5 July 2007 the Constitutional Court held that the notion of areas of particular value, established in Article 54 § 1 of the Constitution, presupposed that certain areas of the territory of Lithuania not only could but also had to be treated as areas of particular value. In the context of the case at issue, the Constitutional Court held that certain areas were referred to as protected areas in domestic law, including national parks and reserves. The national parks and reserves thus were territories of utmost importance, and the legislative power could decide on specific regime of protection and use of such areas. 71. The Constitutional Court stated that Article 23 of the Constitution set out the essence of the right of protection of property (rulings of 27 May 2002, 30 October 2008 and 10 April 2009). Under the Constitution an owner had the right to carry out any actions in his property except for those prohibited by law (rulings of 20 May 2008, 30 October 2008, 31 January 2011 and 14 March 2014 ). (b) On access to a court 72. The Constitutional Court has ruled numerous times on the right of access to a court. It has stated that access to a court was the most reliable way to defend one ’ s rights (ruling of 14 February 1994). The implementation of the said right was preconditioned by the person ’ s perception that his or her rights had been breached (ruling of 1 October 1997). Denial of possibilities to challenge a certain decision before a court was incompatible with the concept of the rule of law and the constitutional doctrine of protection of one ’ s rights (rulings of 4 March 1999, 2 July 2002, 4 March 2003, 17 August 2004, 7 February 2005 and 16 April 2014 ); in this sense, under the Constitution, the right of access to a court was absolute (ruling of 30 June 2000); it could not be artificially limited or made extremely difficult to implement (ruling of 13 December 2004). If this constitutional right was not ensured, the general principle of ubi ius, ibi remedium would be breached (decision of 8 August 2006). Violated constitutional rights could be defended in court regardless of whether they were mentioned in a statute or substatutory legislation (ruling of 23 June 1999). Individuals ’ rights had to be protected in a practical and effective manner from unlawful actions on the part of private individuals as well as State authorities (rulings of 8 May 2000, 29 December 2004). 73. The Constitutional Court held that the constitutional right of access to a court could not be interpreted as allowing a person to defend his or her rights in court only directly (ruling of 16 January 2006). 74. In its ruling of 13 May 2010, the Constitutional Court held that legal regulation on access to a court had to comply with the constitutional requirement of legal certainty; the legislature had to clearly establish which court a person had to apply to and how, in order to implement his or her right of access to a court ( rulings of 13 May 2010 and 28 June 2016). (c) On referral of matters to the Constitutional Court 75. The Constitutional Court held that if there were doubts as to whether the law applicable to a specific case was in compliance with the Constitution, the examination of the case had to be suspended and the court had to refer the matter to the Constitutional Court, otherwise it would risk adopting an unjust decision (rulings of 16 January 2006 and 24 October 2007). Administrative courts must not examine cases that were within the competence of the Constitutional Court. The subject of the argument before the administrative courts thus could not be an activity of the Government by which State power was implemented. However, administrative courts could investigate the activities of the Government if such investigation was necessary to confirm doubts about compliance of the above-mentioned acts with the Constitution and laws (ruling of 13 May 2010). 76. The Constitutional Court held that the requirement to justify decisions was also applicable to the courts ’ decisions on whether to refer an issue to the Constitutional Court (rulings of 28 March 2006, 21 September 2006, 5 July 2007 and 28 June 2016). (d) On legal acts and their constituent parts 77. In its rulings of 9 July 1999 and 29 October 2003 the Constitutional Court held that all parts of a legal normative act (including its appendices) constituted a single legal act and had equal legal consequences. Appendices could not be separated from a legal act because if they were changed, the contents of the legal act also changed. The graphic part of a legal act has legal consequences equal to those of the textual part, with which it constitutes a single legal act (ruling of 27 June 2007). 2. Other pertinent case-law 78. In a case concerning holidays and working time of medical workers, the Supreme Administrative Court held that administrative courts could examine cases concerning damages caused by the result of an activity (omission) of the Government, which had resulted or could result into violation of a person ’ s rights or freedoms. Article 16 § 2 of the Law on Administrative Proceedings had not prevented a person from lodging a complaint before the court if he or she had thought that his or her rights had been breached by the activity of the Government (decision of 20 July 2012, no. AS-444-486-12). 79. In two cases concerning a refusal to examine the complaint about the annulment of part of the Management Plan about the legalisation of boatel buildings, the Supreme Administrative Court held that one of the Government ’ s functions was the approval of borders of regional parks and State reserves, as well as approval of management plans of protected areas. Approving the Management Plan the Government implemented the State power, and the lawfulness of such act had to be decided by the Constitutional Court. Although the applicant claimed that the Management Plan was an individual act, the court held that management plans of protected areas were normative and not individual legal acts (decisions of 28 September 2012, nos. AS-822-630/2012 and AS-552-631/2012). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 80. The applicant company complained of an unlawful and unreasonable restriction of its property rights as a result of the authorities ’ refusal to issue documents allowing it to reconstruct or carry out major repair work in respect of its buildings and their refusal to adopt a clear decision on the time-limits and compensation for the buildings that were to be demolished. The applicant company relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. Exhaustion of domestic remedies (a) As to the exhaustion of domestic remedies in accordance with the Civil Code ( i ) The parties ’ submissions 81. The Government argued that the applicant company had failed to exhaust effective domestic remedies. The applicant company could have lodged a claim with the domestic courts under Article 6.271 of the Civil Code, claiming damages for the allegedly unlawful actions by the authorities, namely by including the buildings in the list of objects to be privatised. They could also have asked the courts to rescind the purchase agreement in respect of the buildings. The Government referred to the decision of the Vilnius Regional Administrative Court, indicating that the applicant company had chosen the wrong remedy to protect its rights ( see paragraph 36 above ). The actions of the applicant company, namely its efforts to acquire planning permission for reconstruction of or major repair work on the buildings, to get the authorities to agree to its proposed changes to the detailed plan and to include the area in the landscape management recreational zone had been inappropriate as they had not been in compliance with domestic law. 82. The applicant company maintained that in order to contest the purchase agreement, it would have had to also complain about the Government Resolution, by which it had been decided to include the buildings in question in the list of objects to be privatised, which was within the jurisdiction of the Constitutional Court. Moreover, by contesting the purchase agreement, the applicant company would be forced to admit that the privatisation of the buildings had been unlawful, thus it claimed that that remedy would be ineffective. (ii ) The Court ’ s assessment 83. The Court reiterates that the rule on exhaustion of domestic remedies under Article 35 § 1 of the Convention requires that complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014). 84. With regard to the case in issue, the Court notes that the central tenet of the applicant company ’ s complaint is the allegedly unlawful and unjustified interference with its property rights on account of the authorities ’ refusal to allow it to reconstruct or carry out major repair work on its buildings and their failure to set time-limits and establish a compensation mechanism for the demolition of the buildings. In respect of that complaint, the applicant company pursued a number of available legal remedies before the administrative and judicial authorities (see paragraphs 12, 16 - 19, 23 - 24, 31, 33 - 34, 27, 39 and 41 above). It also applied for compensation for the pecuniary damage it had sustained as a result of the fact that it had been unable to do anything with the buildings (see paragraph 34 above). The domestic courts never stated that the authorities had acted unlawfully by including the buildings in the list of objects to be privatised and the Court is not convinced that the remedy under Article 6.271 of the Civil Code, referred to by the Government, would have been effective. The Court further observes that the Government refers in this respect to a decision by the Vilnius Regional Administrative Court from 2016 while the application was lodged by the applicant company before the Court in 2014. The Court does not see how the remedy under Article 6.271 of the Civil Code would have been effective at the material time. The Court thus dismisses the Government ’ s objection in this respect. (b) As to the exhaustion of domestic remedies in accordance with the Management Plan ( i ) The parties ’ submissions 85. The Government argued that as the Management Plan had indicated a reserve area designated to compensate for possible losses incurred by the lawful owners of the buildings that had to be demolished, the applicant company could have asked to participate in a public auction in order to lease the reserve land for the construction work it sought to carry out (see paragraphs 55, 57 and 65 above). 86. The applicant company claimed that a request to participate in a public auction in order to lease the land in a reserve area would not have been an effective remedy because the reserve area had not been demarcated and the detailed plan necessary to complete the procedure had not been drafted. Moreover, even if the applicant company had been successful in the public auction, it would still not have been compensated for the demolition of its buildings. (ii) The Court ’ s assessment 87. The Court firstly observes that the reserve area referred to by the Government as a possible remedy for the applicant company, has not yet been demarcated and it is very unlikely that it could be included in a public auction. Secondly, the Government has not provided any information to the Court that the public auction has been organised. It is up to the State, and not to the applicant company, to initiate the public auction and the Court does not see how that specific measure could be effective for the purposes of Article 35 § 1 of the Convention. The Court thus dismisses the Government ’ s objection in this respect. 2. Existence of “possessions” (a) The parties ’ submissions 88. The Government maintained that the applicant company did not have a legitimate expectation to use the property within the meaning of Article 1 of Protocol No. 1, as it could not have expected to be able to use the buildings in issue in the way it had chosen. The applicant company ’ s property rights were limited by the applicable provisions of domestic law, which only allowed it to demolish or resell the buildings in question. 89. The applicant company argued that it had had a legitimate expectation to reconstruct or repair its buildings, as the authorities had started to prepare a detailed plan in order to allow it to renovate the buildings or to build new recreational buildings (see paragraph 9 above). (b) The Court ’ s assessment 90. The concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to the ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Depalle v. France [GC], no. 34044/02, § 62, ECHR 2010 ). 91. The Court observes that there was a legitimate expectation on the part of the applicant company to be able to use the buildings in question (see paragraphs 9 and 10 above) until the demolition took place. It considers that the circumstances of the present case conferred on the applicant company a title to a substantive interest protected by Article 1 of Protocol No. 1. This provision is thus applicable and the Government ’ s objection has to be dismissed. 3. Conclusion on admissibility 92. The Court further notes that this part of the applicant company ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 93. The applicant company submitted that the decision to demolish its buildings had been established in the Management Plan of 2012. Had the buildings been earmarked for demolition since 1994, they would have never been included in the list of objects to be privatised and sold in 2000. In 2001-02 the authorities had confirmed that the buildings in question could be reconstructed and the issue of demolition had not been raised. The applicant company claimed that the exact procedure for demolition, the time-limits and the issue of compensation had not been established, which was against the principles of legitimate expectations and proportionality. 94. The applicant company further stated that its situation amounted to de facto expropriation, because its right to use its property had been completely restricted by the Management Plan. The applicant company could not sell the buildings because no one would buy them, and it was forced to bear responsibility for the buildings and pay taxes on them. 95. The applicant company also complained that there had never been a prohibition from carrying out major repair work in the area in question. In fact, the Neringa Municipality had inspected the buildings and stated that they had to be repaired. The applicant company claimed that failure to comply with that order would result in administrative or even criminal liability. 96. The Government argued that the decisions of the authorities (the refusal to grant planning permission for major repair work, refusal to accept the applicant company ’ s proposal to change the detailed plan, and imposing the land tax) had been based on the provisions of domestic law related to the protection of the Curonian Spit National Park, which was subject to particular legal treatment. 97. The Government also claimed that the decision to demolish the buildings had been taken in 1994, when the development plan had been adopted. The applicant company must therefore have been fully aware that it would have to comply with the development plan and demolish the buildings. Moreover, the Management Plan had not contained any new restrictions with regard to the applicant company ’ s buildings and there had been no uncertainty regarding the legal status of the buildings. The inclusion of the buildings in the list of objects to be privatised had not deprived them of their status as buildings to be demolished. 98. Lastly, after having purchased the buildings, the applicant company had not maintained and occupied them. The inspection report drawn up by the representative of the Neringa Municipality had merely confirmed that fact. Moreover, the applicant company had never been prohibited from repairing the buildings. That was significantly different from carrying out major repair work, which would have allowed the applicant company to reconstruct them. In fact, the applicant company had paid land tax and property tax which it would not have had to pay if it had demolished the buildings. 2. The Court ’ s assessment (a) General principles 99. As the Court has stated on a number of occasions, Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, inter alia, to have a measure of control over the use of property in accordance with the general interest. The three rules are not, however, distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property, and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000-I, and Sargsyan v. Azerbaijan [GC], no. 40167/06, § 217, ECHR 2015). (b) Whether there was an interference 100. The Court notes that the applicant company was banned from developing its property, situated in the Curonian Spit National Park, which was subject to a specific legal regime and designated for demolition, by virtue of the development plan, which was in force when it acquired the buildings. Subsequently, the Management Plan (see paragraphs 26 and 53 above) and relevant domestic regulations proscribed any construction in the area where the applicant company ’ s buildings were located. In fact, the only legal action the applicant company could take with regard to the buildings was to demolish or resell them. The inability to develop his or her own property constitutes a limitation of the rights normally enjoyed by a property owner (see Matczyński v. Poland, no. 32794/07, § 96, 15 December 2015). The Court is therefore of the view that there has been an interference with the peaceful enjoyment of the applicant company ’ s possessions. 101. The Court observes that the development plan, the Management Plan and relevant domestic law did not deprive the applicant company of its possessions but rather imposed certain restrictions on the use of those possessions. The applicant company ’ s buildings were designated for demolition in 1994. It cannot be said that the applicant company was deprived of its possessions. Moreover, contrary to its statements, it did not look after the buildings as required by domestic law, which resulted in an inspection (see paragraphs 32 and 57 above) and the requirement to repair the buildings and to remove the parts that were falling down. That cannot be regarded as equivalent to carrying out major repair work (see paragraph 55 above). The Court therefore considers that the applicant company ’ s ownership right with respect to the buildings did not disappear. The restrictions thus may be regarded as measures to control the use of property (see Potomska and Potomski v. Poland, no. 33949/05, § 63, 29 March 2011). However, the applicant company ’ s complaint also relates to the authorities ’ alleged failure to take relevant decisions as regards compensation, time-limits for demolition and refusal to allow the applicant company to develop the property. Having regard to the different facets of the applicant company ’ s complaint, the Court considers that it should examine the situation complained of under the general rule established in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention ( ibid. ). (c ) Whether the interference complied with the conditions set out in Article 1 of Protocol No. 1 102. In order to comply with Article 1 of Protocol No. 1 to the Convention, it must be shown that the measure constituting the interference was lawful, that it was “in accordance with the general interest”, and that there existed a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Hutten- Czapska v. Poland [GC], no. 35014/97, §§ 163-168, ECHR 2006 ‑ VIII). ( i ) Lawfulness 103. The interference with the applicant company ’ s possession was a result of the rules of domestic law (see paragraphs 26 and 53 above), which form a sufficient legal basis for the impugned restrictive measures. In this connection, the Court further observes that the domestic rules were sufficiently clear and foreseeable (see also paragraph 69 above). The interference was thus “prescribed by law”. (ii) Legitimate aim 104. The Court reiterates that the conservation of cultural heritage and, where appropriate, its sustainable use, have as their aim, in addition to the maintenance of a certain quality of life, the preservation of the historical, cultural and artistic roots of a region and its inhabitants. As such, they are an essential value, the protection and promotion of which are incumbent on the public authorities (see Potomska and Potomski, cited above, § 64, and Bogdel v. Lithuania, no. 41248/06, § 60, 26 November 2013 ). 105. The Court is thus satisfied that the interference pursued a legitimate aim, namely the protection of the country ’ s cultural heritage and the need to ensure the compliance of Lithuania with the international obligations to UNESCO (see paragraph 69 above). (iii) Proportionality 106. Any interference with the right to the peaceful enjoyment of possessions must achieve a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights (see, among other authorities, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52). In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought. In each case involving the alleged violation of this right the Court must, therefore, ascertain whether by reason of the State ’ s action or inaction, the person concerned had to bear a disproportionate and excessive burden (see, Potomska and Potomski, cited above, § 6 5 and the cases cited therein ). 107. In assessing compliance with Article 1 of Protocol No. 1, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. The Court has often reiterated that regional planning and environmental conservation policies, where the community ’ s general interest is pre-eminent, confer on the State a margin of appreciation that is greater than when exclusively civil rights are at stake (see Depalle, cited above, § 84 and the cases cited therein ). Nevertheless, in exercising its power of review, the Court must determine whether the requisite balance was maintained in a manner consonant with the applicant ’ s right to property (see Matczyński, cited above, § 105). 108. Consideration must be given in particular to the question of whether the applicant, on acquiring the property, knew – or should have reasonably known – about the restrictions on the property, or possible future restrictions (see Matczyński, cited above, § 106 ), the existence of legitimate expectations with respect to the use of the property or acceptance of the risk on purchase, the extent to which the restriction prevented use of the property and the possibility of challenging the necessity of the restriction (see Potomska and Potomski, cited above, § 67 and the cases cited therein ). 109. Turning to the circumstances of the present case, the Court observes that the applicant company bought the buildings in question in 2000. The buildings were situated in the Curonian Spit National Park, which was established in 1991 and included on the UNESCO World Heritage List in 2000 (until then it was included on the UNESCO World Heritage Tentative List) (see paragraph 69 above). This fact means that the State ’ s margin of discretion depended on its obligations to UNESCO and there are no doubts that the measures that have to be taken in respect of the UNESCO territory could be rigorous. 110. The applicant company ’ s buildings were designated for demolition in the development plan of 1994, six years prior to the purchase and the restrictions preventing the development of the property were already in existence when the applicant company acquired it (see paragraphs 8, 51 - 53 above). Although a number of provisions of the development plan have been changed by the Management Plan in 2012, the provisions concerning the applicant company ’ s buildings remained unchanged since 1994 (see paragraph 40 above). The Court thus considers that the applicant company knew, or should reasonably have known, that under the domestic law in force at the time when it bought the buildings in question, the property was designated for demolition and although the date of the demolition had not been set, it had to take place at some point in time. The whole text and schemes of the development plan were accessible to all those who wanted to access them (see paragraph 69 above). The applicant company thus could not reasonably have expected to obtain planning permission to redevelop the buildings, in particular to reconstruct them by changing their designation, function or size, even if such possibility might have been considered at some point in time (see paragraphs 9 and 10 above) and must already have accepted the risk at the time of purchase because the demolition had to take place at some point in time. Contrary to the applicant company ’ s arguments, as is apparent from the documents submitted by the parties, the Management Plan of 2012 did not change the designation of the property, and its classification has not changed since. The applicant company thus was never entitled to any compensation for demolition of the buildings, irrespective of when such demolition had to take place. 111. Lastly, the Court notes that the applicant company was not prevented from challenging the authorities ’ decisions as regards construction in the park before the domestic courts. In fact, the applicant company has actively exercised that right and has been involved in that procedure (see paragraphs 12, 16 - 19, 23 - 24, 31, 33 - 34, 27, 39, 41 and 43 above). The Court thus considers that the interference with the applicant company ’ s peaceful enjoyment of its property was accompanied in the present case by sufficient procedural guarantees affording to it a reasonable opportunity of presenting its case to the relevant judicial authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision (see Sourlas v. Greece ( dec. ), no. 46745/07, 17 February 2011). 112. Having regard to all the foregoing factors, the Court finds that a fair balance was struck between the protection of the applicant company ’ s possessions and the requirements of the general interest. The applicant company did not, therefore, have to bear an individual or excessive burden. 113. There has accordingly been no violation of Article 1 of Protocol No. 1 to the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 114. The applicant company complained that it had been deprived of a fair hearing and had not had an effective remedy because the domestic courts refused to accept its complaint in 2012, stating that it was under the jurisdiction of the Constitutional Court (see paragraphs 28 and 29 above) while it was impossible under domestic law to address the Constitutional Court with an individual constitutional complaint. The applicant company relied on Article 6 § 1 and Article 13 of the Convention. The Court considers that this complaint falls to be examined solely under Article 6 § 1 of the Convention, which in the present case should be viewed as lex specialis in relation to Article 13. The relevant part of Article 6 § 1 reads as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] tribunal...” A. Admissibility 115. The Court notes that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties ’ submissions 116. The applicant company pointed out that the domestic courts had refused to accept its complaint regarding the Management Plan as being outside the scope of jurisdiction of the administrative courts, and added that under domestic law it could not apply directly to the Constitutional Court (see paragraph 60 above). It further complained that the Supreme Administrative Court disregarded its own interpretation of domestic law in another case, where it held that Article 16 § 2 of the Law on Administrative Proceedings merely separated the competence of the Constitutional Court and the administrative court but did not prevent a person from applying to the administrative court if his or her rights had been violated by certain legal act (see paragraph 78 above). 117. The applicant company also argued that the provisions of the Management Plan were not general but rather individual in nature, as they determined an individual legal regime of the specific territory. The applicant company ’ s buildings, being within that territory, were directly affected by the provisions established in the Management Plan, and thus the administrative courts had to consider its complaint regarding the Management Plan. 118. The Government submitted that the administrative courts had established that the Government Resolution by which the Management Plan had been approved was a normative legal act, and was thus outside the jurisdiction of the administrative courts. The applicant company would be able to contest an individual act, by which the Management Plan was implemented. The administrative courts had also clearly reasoned their position, explaining why the applicant company ’ s complaint was not within their jurisdiction (see paragraph 29 above). 119. The Government also claimed that the administrative courts had some discretion, whether to apply to the Constitutional Court, and that in the applicant company ’ s case the administrative courts had clearly reasoned their position why there was no need to apply to the Constitutional Court. Moreover, in 2016, when the applicant referred to an individual legal act, the domestic courts did analyse, whether they had to apply to the Constitutional Court, and decided that there was no need to do that. 120. Finally, the Government stated that the refusal of the domestic court to accept the applicant company ’ s claim did not deprive it of its right to contest the lawfulness of the act of the Government. The applicant company had to apply to the court in an individual case by contesting specific actions performed on the basis of the Government act and asking the court to refer the issue to the Constitutional Court. 2. The Court ’ s assessment 121. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see Stanev v. Bulgaria [GC], no. 36760/06, § 229, ECHR 2012 and the cases cited therein). 122. Furthermore, the Court reiterates that the right of access to a court does not only include the right to institute proceedings, but also the right to obtain a “determination” of the dispute by a court (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 86, ECHR 2016 (extracts), and Fălie v. Romania, no. 23257/04, § 22, 1 9 May 2015 ). That right would be illusory if a Contracting State ’ s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case was determined by a final decision in the judicial proceedings. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without securing to the parties the right to have their civil disputes finally determined (see Fălie, cited above, § 22, and Multiplex v. Croatia, no. 58112/00, § 45, 10 July 2003). 123. The Court also notes that Article 6 § 1 of the Convention does not guarantee a right of access to a court with competence to invalidate or override a law (see S.B. and others v. Finland ( dec. ), no. 30289/96, 16 March 2004; Biziuk and Biziuk v. Poland ( dec. ), no. 12413/03, 12 December 2006; and Furdik v. Slovakia ( dec. ), no. 42994/05, 2 December 2008). Nevertheless, the Court reiterates that according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based (see Suominen v. Finland, no. 37801/97, § 34, 1 July 2003 ). Without requiring a detailed answer to every argument advanced by the complainant, this obligation presupposes that parties to judicial proceedings can expect to receive a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings (see Deryan v. Turkey, no. 41721/04, § 33, 21 July 2015). 124. Turning to the present case, the Court observes that the domestic law and case-law clearly establish both the right of access to a court and the possibility to challenge the legality of acts, as well as the right of a posteriori review of legal acts by the Constitutional Court (see paragraphs 46, 58, 60 and 76 above). In the absence of an individual constitutional complaint, the latter right can be implemented through the domestic courts (see paragraph 60 above), which have discretion to decide whether to refer an issue to the Constitutional Court. However, their refusal to do so has to be explicitly reasoned, as repeated by the Constitutional Court on a number of occasions (see paragraph 76 above). 125. The Court further notes that the applicant company had the opportunity of bringing legal proceedings before the domestic courts; it availed itself of that opportunity by bringing a complaint about the Management Plan before the administrative courts ( see paragraph 27 above). This in itself, however, does not satisfy all the requirements of Article 6 § 1. In the instant case, the Court notes that the domestic administrative courts at two levels of jurisdiction did not allow the applicant company ’ s complaint on the grounds that it was outside their jurisdiction, and the applicant company ’ s request for reopening of the proceedings was rejected as the case had not been examined on the merits (see paragraphs 28 - 30 above). Indeed, the first-instance court provided rather succinct reasoning when dismissing the applicant company ’ s claim, limiting itself to re - citing statutory provisions (see paragraph 28 above). However, after the applicant company had lodged a separate complaint, the Supreme Administrative Court addressed the essential issues which had been submitted to it. It did not merely endorse, without further ado, the findings of the lower court, but thoroughly explained why it could not hear a case involving the lawfulness of the Government Resolution, which concerned State power issues (see paragraph 29 above). 126. The Court notes that one of the applicant company ’ s arguments was that the Government Resolution at issue was an individual legal act and that, as such, it could be challenged before the administrative courts. However, the Court also observes that as early as 2007 the Constitutional Court had examined the lawfulness of the development plan and held that although it consisted of several parts, some of which consisted of graphic schemes, this did not deprive it of the character of a normative legal act (see paragraph 69 above). Moreover, in several other cases the Supreme Administrative Court had already ruled that the administrative courts could not examine the lawfulness of the Management Plan (see paragraph 79 above). Given the nature of the applicant company ’ s complaint, the Court considers it sufficiently proved that the domestic courts had ruled out the individual nature of the Management Plan. The Court sees no reason why the Supreme Administrative Court should have reached a different conclusion in the applicant company ’ s case, especially given that in the domestic proceedings, the applicant company limited its complaint to this exact issue, which had already been decided upon by the domestic courts (see paragraph 29 above). 127. The Court also observes that the applicant company ’ s request to refer the issue on the Management Plan to the Constitutional Court was examined on the merits in 2016 and dismissed by the court of first instance (see paragraphs 36 and 125 above). However, the case concerned a different subject matter and the situation could not be compared to the applicant company ’ s situation in 2012. 128. The Court thus considers that, having regard to the nature of the applicant company ’ s claim concerning the revocation of part of the Management Plan and the amendment of it, the applicant company may not validly argue that the decisions of the domestic courts deprived it of the right to a court. Even though in the present case a more substantial statement of reasons by the first-instance court might have been desirable, this shortcoming was later rectified (see paragraphs 36 and 125 above). The Court is satisfied that the degree of access afforded to the applicant company was sufficient to secure it the “right to a court” and to obtain a determination of the dispute by a court, given that the domestic courts duly reasoned their decisions as required by domestic law. 129. There has accordingly been no violation of Article 6 § 1 of the Convention. | The Court held that there had been no violation of Article 1 of Protocol No. 1 to the Convention, finding that a fair balance had been struck between the general interest and the applicant company’s individual property right. It noted in particular that the company should have foreseen both the denial of planning permission and the ultimate requirement to demolish the buildings, which was provided for under a development plan of 1994 and remained unchanged. In addition, the Lithuanian authorities’ aim had been legitimate, namely the protection of cultural heritage and the honouring of rigorous international obligations to UNESCO. Finally, given the public law context, the authorities’ actions were deemed proportionate. The Court also held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention. |
936 | Concurrent judicial functions in the same case | II. RELEVANT LAW A. The EEC rules and their implementation in Luxembourg 18. In order to regulate and stabilise the market in milk and milk products, which was characterised by overproduction, the Council of Ministers of the European Economic Community adopted Regulations (EEC) Nos. 856/84 and 857/84 of 31 March 1984. These established in the Community member States, for a five-year period commencing on 2 April 1984, a system of additional levies on all milk delivered in excess of a guaranteed quantity, also known as the "reference quantity". Each member State was allocated a total reference quantity which it then had to apportion among milk producers, under Formula A, or milk purchasers (dairies) under Formula B. The reference quantities for purchasers and producers were determined on the basis of the deliveries they took or their production in 1981, 1982 or 1983, weighted by a certain percentage fixed in such a way as not to exceed the guaranteed quantity. The additional levy, which was set at a certain percentage of the target price for milk, was payable by producers or purchasers, as appropriate, on all milk produced or collected in excess of the reference quantity. Where a member State chose Formula B, purchasers were to pass on the cost of the additional levy only to those producers who had delivered a quantity of milk exceeding their quota. 19. Luxembourg opted for Formula B, and the measures for implementing the Community rules were laid down in a grand-ducal regulation of 3 October 1984 and a number of ministerial orders of 10 October 1984 (see paragraph 8 above). B. The Conseil d'Etat 20. At the time when the judgment complained of by the applicant association was given, the second and third paragraphs of Article 76 of the Luxembourg Constitution, which govern the subject, provided: "In addition to the Government there shall be a Council, whose functions shall be to deliberate on draft legislation and any amendments proposed thereto, determine administrative disputes and give its opinion on any other question referred to it either by the Grand Duke or pursuant to a statutory provision. The organisation of this Council and the manner in which it is to perform its functions shall be laid down by statute." 1. Membership 21. The Act of 8 February 1961, as amended on 26 July 1972, laid down the organisation of the Conseil d'Etat. Section 1 provides: "The Conseil d'Etat shall be composed of twenty-one councillors, eleven of whom shall form the Judicial Committee. The latter figure shall not include those members of the Reigning Family who form part of the Conseil d'Etat ." The Act does not distinguish between the Judicial Committee and the Conseil d'Etat proper with regard to the appointment of the Conseil d'Etat's members (section 4). The members are all appointed by the Grand Duke, who chooses them either directly or from a list of candidates put forward by the Chamber of Deputies or the Conseil d'Etat itself. The members of the Judicial Committee are chosen from among the members of the Conseil d'Etat (section 5). 22. Section 9 lays down the qualifying conditions for becoming a member of the Conseil d'Etat. The same qualifying conditions apply to the Judicial Committee, except that its members must also be doctors of law or enjoy the rights appertaining to that title. The duties of a member of the Conseil d'Etat are not full-time and are incompatible only with serving as a member of the Government, a Government adviser or a member of Parliament. Section 22 (2) provides: "Members of the Judicial Committee may not take part in the deliberations on cases which they have already dealt with in some other capacity than as member of the Conseil d'Etat ." It thus implies that a councillor who has already had to deal with a case as a member of the Conseil d'Etat is not prevented from dealing with the same case if it comes before the Judicial Committee. 23. In principle, the term of office of a member of the Conseil d'Etat ends only when he reaches the age-limit, which is at present 72. 2. Functions 24. The Conseil d'Etat has mainly advisory and judicial functions (sections 7 and 8). 25. With regard to its advisory functions (section 27), the Conseil d'Etat gives its opinion on all Government and private members' bills, draft regulations on general administrative matters, and draft regulations or orders required for the implementation of treaties. 26. As a judicial body, the Conseil d'Etat, acting through its Judicial Committee, is the court of first and last instance in administrative proceedings. Its judicial powers are restricted in two respects. Firstly, it can only review the lawfulness of individual administrative decisions, not general regulatory decisions; secondly, except where there is an express statutory provision to the contrary (section 29), the only remedy available against these decisions is judicial review on the grounds of lack of competence, ultra vires, abuse of authority or breaches of the substantive or procedural rules protecting private interests (section 31). 3. Proposed reform 27. In 1989 Article 76 of the Constitution was amended. A bill at present before Parliament is intended to bring about a radical reform of this whole question, the aim being to separate the Conseil d'Etat's advisory and judicial functions. PROCEEDINGS BEFORE THE COMMISSION 28. Procola and sixty-three of its members, all farmers, applied to the Commission on 22 November 1988. They complained of an infringement of their right to an independent and impartial tribunal, secured in Article 6 para. 1 (art. 6-1) of the Convention, on the ground that some of the members of the Judicial Committee who ruled on Procola's application for judicial review had previously given their opinion on the lawfulness of the impugned provisions. They also argued that retrospective application of the decisions fixing the milk quantities was in breach of Article 7 (art. 7) of the Convention. Lastly, they contended that the additional levies infringed their right to the peaceful enjoyment of their possessions contrary to Article 1 of Protocol No. 1 (P1-1). 29. On 1 July 1993 the Commission declared Procola's application (no. 14570/89) admissible as regards the first complaint and inadmissible as to the remainder. It declared the complaints submitted by Procola's members inadmissible, on the ground that they had not exhausted domestic remedies. In its report of 6 July 1994 (Article 31) (art. 31), it expressed the opinion by nine votes to six that there had been no violation of Article 6 (art. 6) of the Convention. The full text of the Commission's opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 30. In their memorial the Government asked the Court "to hold that Article 6 para. 1 (art. 6-1) of the Convention is not applicable to the case before the Court or, in the alternative, that this provision (art. 6-1) was not violated". 31. The applicant's lawyer asked the Court "to hold, as regards the merits of the case, that there has been a violation of the European Convention for the Protection of Human Rights as regards Article 6 para. 1 (art. 6-1); to hold that the applicant's loss amounts to 4,456,453 [ Luxembourg francs (LUF)], together with interest of [LUF] 568,290, i.e. a total of [LUF] 5,024,743". AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION 32. The applicant association complained that the Judicial Committee of the Conseil d'Etat was not independent and impartial. It alleged a violation of Article 6 para. 1 (art. 6-1) of the Convention, which provides: "In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an independent and impartial tribunal ..." A. Applicability of Article 6 para. 1 (art. 6-1) 33. Procola argued that this provision (art. 6-1) was applicable in the case. The Government and the Commission took the opposite view. 1. Whether there was a dispute concerning a right 34. The Government maintained that the application for judicial review made to the Judicial Committee of the Conseil d'Etat was an "objective" one ( recours objectif ) - that is to say that it did not relate to a private right - directed against a decision applying Community rules; it did not, therefore, concern a "contestation" (dispute) between the parties to an action. If the Judicial Committee had upheld the application, it could only have set aside the impugned orders and remitted the case to the Minister of State, so that he could take a fresh decision. It could not have ordered repayment of sums paid without legal cause as, under Article 84 of the Constitution, only the ordinary courts were empowered to determine civil rights. Moreover, the Government continued, even if an application to the ordinary courts had been possible, no decision could have been given in Procola's favour, since the association as such had never had a legally enforceable claim. The application could not have led to either repayment of the additional levies to Procola or the award of any compensation as, under the system adopted by Luxembourg, the levy, although imposed on the purchaser, was passed on by the latter only to those producers who had exceeded their quota (see paragraph 18 above). In short, the proceedings could not have had any result affecting the applicant's financial position. 35. The applicant association argued that unless the ministerial orders were quashed it could not seek damages in the civil courts; and only the Conseil d'Etat could quash them. The proceedings in the Conseil d'Etat were thus decisive for a civil right, namely the right to repayment of the fine for overproduction. Procola asserted that under the Formula B system chosen by Luxembourg it was the party with which the State had to have legal relations and conduct financial dealings in the event of overproduction. This was evidenced by the fact that the State had brought proceedings against the association to secure payment of the fine each time the reference quantity had been exceeded. 36. The Commission took the view that the application to the Conseil d'Etat had been lodged in connection with a public-law dispute which did not concern a private right of the applicant association. Its real purpose was to secure a review in the abstract of the lawfulness of measures taken by the public authorities. 37. The Court notes that before the Judicial Committee the parties took opposite views on the question whether the ministerial orders fixing milk quantities could be given retrospective effect. Procola maintained that for the years from 1984 to 1987 no levy was payable, since the previous rules had been set aside and it was impossible to make the orders retrospective, whereas the Delegate of the State maintained that the orders were lawful. The applicant association's case was sufficiently tenable, since the Conseil d'Etat conducted a detailed examination of the conflicting arguments (see the Neves e Silva v. Portugal judgment of 27 April 1989, Series A no. 153-A, p. 14, para. 37, and the Editions Périscope v. France judgment of 26 March 1992, Series A no. 234-B, p. 65, para. 38). Within the meaning of Article 6 (art. 6) of the Convention there was without any doubt a dispute concerning the determination of a right. 2. As to the civil nature of the right in issue 38. The Court reiterates that Article 6 para. 1 (art. 6-1) is applicable where an action is "pecuniary" in nature and is founded on an alleged infringement of rights which are likewise pecuniary rights, notwithstanding the origin of the dispute and the fact that the administrative courts have jurisdiction (see, among other authorities, the Editions Périscope judgment, previously cited, p. 66, para. 40, and the Beaumartin v. France judgment of 24 November 1994, Series A no. 296-B, pp. 60-61, para. 28). 39. In order to satisfy itself that the proceedings were decisive for a civil right, the Court considers it necessary to look at the proceedings as a whole. Procola sought repayment of the fine for overproduction of 4.5 million Luxembourg francs (LUF); the association argued that it had paid this sum wrongly, on the ground that its members had produced the milk during a period when there was a legal vacuum and the Luxembourg Government were not entitled to hold them to account for overproduction. Admittedly, the application to the Conseil d'Etat could only result in the annulment of the impugned orders, but that annulment would have enabled the applicant association to bring proceedings in the civil courts to recover the sum it considered to have been wrongly paid. By lodging the application, Procola were using the only means at their disposal - an indirect one - of attempting to obtain reimbursement of the additional levies. Having regard to the close connection between the proceedings brought by Procola and the consequences that their outcome might have had for one of its pecuniary rights, and for its economic activities in general, the right in question was a civil one (see the Editions Périscope judgment, previously cited, p. 66, para. 40; the Beaumartin judgment, previously cited, pp. 60-61, para. 28; the Ortenberg v. Austria judgment of 25 November 1994, Series A no. 295-B, pp. 48-49, para. 28; and, by implication, the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 16, para. 43). In any event, as the applicant pointed out, the Commission took the view in its decision on admissibility that the payment of an additional levy to the national authorities could be construed as a deprivation of possessions within the meaning of the first paragraph of Article 1 of Protocol No. 1 (P1 1), and the right to peaceful enjoyment of one's possessions is undoubtedly a civil right. 40. It follows that Article 6 para. 1 (art. 6-1) is applicable in the case. B. Compliance with Article 6 para. 1 (art. 6-1) 41. The applicant association pointed out that four of the five members sitting on the Judicial Committee when it ruled on Procola's application had previously sat on the advisory panel of the Conseil d'Etat which had given its opinion on the draft Grand-Ducal Regulation of 7 July 1987 and drafted a bill making that regulation retrospective. In view of the opinions they had previously expressed, particularly in the letter sent by the President of the Conseil d'Etat to the Prime Minister on 24 June 1987 (see paragraph 12 above), the members of the Judicial Committee could not have approached the question submitted to them, namely whether it was lawful to apply the ministerial orders of 21 September 1987 retrospectively, with a completely open mind. In the instant case there was neither objective nor subjective impartiality. 42. The Government observed that before the Commission Procola had cast doubt only on the Judicial Committee's objective impartiality. The complaint now raised about subjective impartiality, in support of which no fresh evidence had been adduced, should therefore be rejected as being new. In the instant case, they continued, it was quite true that some members of the Judicial Committee had performed first an advisory function - having given an opinion on the Grand-Ducal Regulation of 7 July 1987 and suggested that the Government have the Act of 27 August 1987 enacted - and then a judicial function. Nevertheless, it would be incorrect to infer that the Conseil d'Etat was not in a position to give an impartial ruling on the application. In the Luxembourg legal system the Judicial Committee was bound to dismiss an application directed against a statute, not because it had earlier given its opinion on the draft but because in such a situation it had no discretion to do otherwise. 43. The Court considers that in the instant case it is not necessary to determine whether the Judicial Committee was an independent tribunal. The applicant association did not put in doubt the method of appointing the Conseil d'Etat's members and the length of their terms of office or question that there were safeguards against extraneous pressure. 44. The only issue to be determined is whether the Judicial Committee satisfied the impartiality requirement of Article 6 (art. 6) of the Convention, regard being had to the fact that four of its five members had to rule on the lawfulness of a regulation which they had previously scrutinised in their advisory capacity. 45. The Court notes that four members of the Conseil d'Etat carried out both advisory and judicial functions in the same case. In the context of an institution such as Luxembourg 's Conseil d'Etat the mere fact that certain persons successively performed these two types of function in respect of the same decisions is capable of casting doubt on the institution's structural impartiality. In the instant case, Procola had legitimate grounds for fearing that the members of the Judicial Committee had felt bound by the opinion previously given. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the tribunal in question, and this makes it unnecessary for the Court to look into the other aspects of the complaint. 46. It follows that there has been a breach of Article 6 para. 1 (art. 6-1). II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 47. Under Article 50 (art. 50) of the Convention, "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Pecuniary damage 48. Procola requested reimbursement of the LUF 4,456,453 fine for overproduction, increased by LUF 568,290 interest, that had been imposed on the association as a result of the retrospective application of the Regulation of 7 July 1987. They argued that, logically, the association should not have had to pay any fine in respect of the years preceding the regulation's entry into force. 49. The Government said that only Procola's individual members could claim to have sustained damage. They further submitted that the amount in issue should be LUF 4,456,453, since the sum representing interest had not been collected. 50. The Delegate of the Commission expressed the view that it was difficult to speculate as to what the outcome of the dispute would have been if the Judicial Committee had been constituted so as to afford all the safeguards of an independent and impartial tribunal. 51. The Court likewise does not perceive any causal link between the breach of Article 6 para. 1 (art. 6-1) and the dismissal of Procola's application by the Conseil d'Etat. It therefore disallows the claim. B. Costs and expenses 52. The applicant association, the Government and the Delegate of the Commission left this matter to the Court's discretion. However, the applicant association suggested that, in view of the complexity of the case, the costs could be assessed at between 5 and 10% of the sum at stake in the proceedings, that is to say between LUF 250,000 and LUF 500,000. 53. Making an assessment on an equitable basis, as required by Article 50 (art. 50), and in the light of the relevant criteria, the Court awards Procola LUF 350,000. | The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the applicant had had legitimate grounds for fearing that the members of the Judicial Committee had felt bound by the opinion previously given, and that that doubt in itself, however slight its justification, was sufficient to vitiate the impartiality of the tribunal in question. The Court noted in particular that four members of the Conseil d’État had carried out both advisory and judicial functions in the same case. In the context of an institution such as Luxembourg’s Conseil d’État the mere fact that certain persons had successively performed these two types of function in respect of the same decisions was capable of casting doubt on the institution’s structural impartiality. |
659 | Persons arrested or under criminal prosecution | II. RELEVANT DOMESTIC LAW 13. In order for an act committed by means of printed matter to constitute a criminal offence it must be punishable under both the Freedom of the Press Act and general criminal law. Chapter 7, section 4 of the Freedom of Press Act provides: “With due regard to the purpose of freedom of the press for all, specified in chapter 1, the following acts shall be deemed to be offences against the freedom of the press if committed by means of printed matter and if they are punishable by law: ... 14. defamation, whereby a person designates someone as a criminal or as having a reprehensible lifestyle, or otherwise communicates information liable to expose that person to the contempt of others, and, if the person defamed is deceased, the act causes offence to his survivors, or might otherwise be considered to violate the sanctity of the grave except, however, in cases in which it is justifiable to communicate the information, having regard to the circumstances, and proof is presented that the information was correct or there were reasonable grounds for the assertion; ...” Chapter 5, section 1 of the Criminal Code reads: “A person who designates someone as being a criminal or as having a reprehensible lifestyle or otherwise communicates information liable to expose that person to the contempt of others, shall be sentenced for defamation to a fine. If he was duty-bound to make a statement or if, in the circumstances, it was otherwise justifiable to communicate information in the matter, and proof is presented that the information was correct or there were reasonable grounds for the assertion, liability shall be excluded.” Chapter 5, section 2 of the Criminal Code provides: “If the offence defined in section 1 is regarded as gross, the person shall be sentenced for gross defamation to a fine or to imprisonment of no more than two years. In assessing whether the offence is gross, particular regard should be had to whether the information, because of its content, the scope of its dissemination or otherwise, was liable to cause serious damage.” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 14. The applicant complained that his right to respect for his private and family life under Article 8 of the Convention had been breached as the courts had failed to provide due protection for his name and reputation. Article 8 reads insofar as relevant as follows: “1. Everyone has the right to respect for his private ... life, ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.” 15. The Government contested that argument. A. Admissibility 16. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 17. The Government submitted that there was no indication that the Swedish courts, in striking the required balance in the present case, had failed to give sufficient weight to the applicant ’ s rights under Article 8. They considered therefore that the case did not disclose a failure on the part of Sweden to secure the applicant ’ s right to respect for his private life under that provision. 18. The applicant did not submit any observations. 19. The Court first finds that the publication of the impugned statements and pictures relating to the applicant falls within the scope of his private life, within the meaning of Article 8 § 1 of the Convention. 20. Noting that the applicant did not complain of an action by the State, but rather the lack of adequate State protection, the Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in the effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals. The boundary between the State ’ s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI, with further references). 21. In the present case, the protection of private life had to be balanced against the freedom of expression guaranteed by Article 10 of the Convention. Freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. This freedom under Article 10 is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. Moreover, a constant thread running through the Court ’ s case-law is the insistence on the essential role of a free press in ensuring the proper functioning of a democratic society. Although the press must not overstep certain bounds, regarding in particular the protection of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Pedersen and Badsgaard v. Denmark [GC], no. 49017/99, § 71, 17 December 2004, with further references). However, protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith, on an accurate factual basis, and provide “reliable and precise” information in accordance with the ethics of journalism. Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. Moreover, these “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations. Also of relevance for the balancing of competing interests which the Court must carry out, is the fact that, under Article 6 § 2 of the Convention, individuals have a right to be presumed innocent of any criminal offence until proven guilty ( ibid., § 78, with further references ). 22. Turning to the facts of the present case, the Court first notes that the Court of Appeal found that the information published in Aftonbladet and Expressen, as such, constituted defamation of the applicant. It is thus important whether the journalists of the two newspapers may be considered to have acted in good faith and complied with the ordinary journalistic obligation to verify factual allegations and, in assessing the responsibility of the Swedish State, whether the courts made a reasonable and sufficient examination in this respect. 23. It is to be noted that the impugned articles mainly contained reports of allegations made by others, in particular Dirk Coetzee, a former senior official of the South African security police. As noted by the Court of Appeal, the journalists who wrote the articles had contacted journalist colleagues, public servants and representatives of various organisations in different countries and capacities in order to verify those allegations. After hearing six journalists as witnesses, the appellate court concluded that “each of them separately has had high ambitions to find out the degree of truth of Dirk Coetzee ’ s statements and to check with reliable sources who the person Anthony White was”. In this connection, regard should further be had to the fact that the newspapers in question also reported statements of individuals who rejected the allegations against the applicant, that Expressen published an interview with the applicant at the relevant time and that Aftonbladet had given him an opportunity to comment on the information published. In view of the above, the Court considers that, in the series of articles, the newspapers endeavoured to present an account of the various allegations made which was as balanced as possible in the particular circumstances. Furthermore, having regard to the persons contacted in order to have the allegations verified, the journalists involved must be considered to have acted in good faith. 24. Moreover, in addition to the evidence given by the journalists, the Court of Appeal also heard Mr Coetzee personally and found him to be a credible person. In these circumstances, the court must be said to have made a thorough examination and had relevant and sufficient reasons to conclude that there was a reasonable basis for the publication of the statements and pictures in question. 25. Nevertheless, the published articles contained strong statements which designated the applicant as a serious criminal. It does not appear that he has been convicted of any of the offences ascribed to him. The statements clearly tarnished his reputation and, moreover, disregarded his right to be presumed innocent until proven guilty according to law. 26. The Court must therefore assess whether the domestic courts struck a fair balance between the two conflicting values guaranteed by the Convention, namely the protection of the applicant ’ s reputation as part of his right to respect for his private life and the newspapers ’ freedom of expression. In that respect, it needs to be ascertained whether the courts applied standards which were in conformity with the principles embodied in Articles 8 and 10 of the Convention. 27. To begin with, the Court considers that the domestic standards concerning the exclusion of liability for defamation by means of printed matter, as laid down in the relevant provisions of the Freedom of the Press Act and the Criminal Code are, as such, in conformity with Convention standards. Moreover, the Court of Appeal clearly recognised the conflict between the two opposing interests and applied the domestic legal provisions by weighing the relevant considerations in the case. 28. Regarding the effect which the publication had on the applicant ’ s private life, the Court of Appeal found that the published information had been liable to expose him to the contempt of others and, as such, was defamatory. It further concluded, however, that the evidence in the case showed that the applicant was well known in southern Africa and among representatives of organisations for the protection of animals and the conservation of nature, and that within certain groups it was known that he had engaged in the alleged activities. The appellate court therefore considered that he was not an ordinary private person in respect of whom there was a particular need of protection. 29. The Court of Appeal balanced the applicant ’ s interests against the public interest in the relevant matters, namely the unsolved murder of the former Swedish Prime Minister Olof Palme and, especially, the so-called “ South Africa trail” in the criminal investigation. Undoubtedly, both the murder of Mr Palme and that particular avenue of investigation were matters of serious public interest and concern. As such, there was little scope for restricting the communication of information on these subjects. 30. Having regard to what has been stated above, the Court finds that the domestic courts made a thorough examination of the case and balanced the opposing interests involved, in conformity with Convention standards. In the circumstances of the case, they were justified in finding, in their discretion, that the public interest in publishing the information in question outweighed the applicant ’ s right to the protection of his reputation. Consequently, the Court cannot find that there has been a failure on the part of the Swedish State to afford adequate protection of the applicant ’ s rights under Article 8 of the Convention. There has accordingly been no violation of that Article. | The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention. It noted in particular that, in the series of articles, the newspapers had endeavoured to present an account of the various allegations made which was as balanced as possible and that the journalists had acted in good faith. It also considered that the Swedish courts had made a thorough examination of the case and balanced the opposing interests involved. In the present case, the Court found that the domestic courts had been justified in finding that the public interest in publishing the information in question outweighed the applicant’s right to the protection of his reputation. Consequently, there had been no failure on the part of the Swedish State to afford adequate protection of the applicant’s rights. |
1,055 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. THE RELEVANT DOMESTIC LAW A. Town-planning law 31. The 1947 Act is the main legal instrument of town-planning policy in Sweden. For this purpose, it provides for the drawing up of master plans and city plans. 32. A master plan (generalplan) will be drawn up by the municipality concerned in so far as this may be required in order to establish a framework for more detailed plans. Its adoption is a matter for the municipal council (kommunfullmäktige), which may refer the plan to the County Administrative Board - before 1 January 1973, to the Government - for approval (Article 10). 33. City plans are prepared for those urban areas in which this is deemed necessary (Article 24). A city plan is more detailed than a master plan: it will indicate the purposes for which the various areas may be utilised - housing, roads, squares, parks, etc. - and may also include more specific provisions on their use (Article 25). After adoption by the municipal council, it must be approved by the County Administrative Board. In the course of this procedure, property owners have various opportunities to submit their views to several agencies and they may, in the last resort, challenge the decision adopting the plan. 34. In some cases master plans and city plans will be submitted to the Government for a decision. 35. In conjunction with - or independently of - these plans, the Swedish authorities may resort to expropriations and to prohibitions on construction, measures between which there is not necessarily any legal connection. 1. Expropriations 36. As regards expropriation, the law applicable in the present case was mainly that contained in the 1917 Act, which was replaced with effect from 1 January 1973 by the Expropriation Act 1972 ("the 1972 Act"). Some additional matters were dealt with in the 1947 Act. 37. It is for the Government to decide whether expropriation should be authorised. Their decision takes the form of an expropriation permit and is based on the various conditions laid down in the Act. Issue of the permit does not automatically lead to an expropriation; it simply entitles a given public authority (or, in exceptional cases, a private individual or a company) to effect the expropriation if necessary. It leaves intact the owner ’ s right to sell, let or mortgage his property, and is subject to a time-limit within which the expropriating authority must initiate judicial proceedings for the fixing of compensation, failing which the permit will lapse. The 1917 Act was silent as to the length of this time-limit and as to the extension of the validity of permits. The official statement of reasons accompanying the Bill in which the 1972 Act originated drew attention to the disadvantages which expropriation permits occasion for property owners - uncertainly, restriction of the possibility of disposing of their property, difficulty in deciding whether to incur expenditure -, disadvantages which become more serious with the passage of time. For this reason Article 6 par. 1 of Chapter 3 of the 1972 Act provides (translation from the Swedish): "Expropriation permits shall set a time-limit for service of a summons to appear for the purposes of judicial proceedings. The time-limit may be extended if there are special reasons. Requests for extension shall be submitted before the time-limit expires. If the owner establishes that the fact that the question of expropriation remains pending has occasioned significantly more serious prejudice, the time-limit may, at his request, be reduced. No decision to reduce the time-limit can be taken until one year has elapsed since the issue of the expropriation permit." The expropriation is not completed until compensation has been fixed and paid. The Real Estate Court has jurisdiction in the matter; its decisions may be challenged in the Court of Appeal and, in the final instance, the Supreme Court. 38. Before 1 July 1953, expropriation related only to individual properties; each request for an expropriation permit described in detail the use to which the expropriating authority intended to put the premises concerned. The present applications involve another kind of expropriation, known as zonal expropriation. The relevant provision was introduced in 1953, by means of an amendment to Article 44 of the 1947 Act, and was repealed in 1971 with effect from 1 January 1972. It was as follows (translation from the Swedish): "If it is deemed necessary, for the purposes of public transport or town planning, to carry out a complete redevelopment of a densely-populated district and if such redevelopment can be effected only by means of rebuilding the entire district, the King may - where the redevelopment measures involve the adoption or modification of a city plan for the district concerned - grant the municipality the right to buy up the land needed for the redevelopment and also any land which is situated in the same district or in the immediate vicinity and whose value is likely to increase considerably as a result of the implementation of the plan ..." Between 1 January and 31 December 1972, provisions corresponding to this Article 44 were incorporated in the 1917 Act; they now appear in the 1972 Act (Chapter 2, Article 1). Zonal expropriations were thus designed as an instrument for major town-planning schemes. The permits which they entail may be issued as soon as a new city plan is under consideration, that is to say even before detailed arrangements for its implementation have been worked out. 39. Under Article 11 of the transitional provisions of the 1972 Act, requests for expropriation permits submitted before this new Act came into force continue to be subject to the old Act. 40. Like the 1917 Act, the 1972 Act does not provide for any possibility of compensation for prejudice resulting from the length of the validity of, or failure to utilise, an expropriation permit. It does, however, contain one exception (Chapter, 5, Article 16): compensation is payable for prejudice occasioned by the issue of an expropriation permit if the authority or person to whom it was granted has instituted, but subsequently abandoned, proceedings for the fixing of compensation. 2. Prohibitions on construction 1 41. The 1947 Act prohibits any new construction that is not in conformity with the city plan (Article 34). It permits, even before, and until, such a plan has been adopted by the municipal authorities and approved by the regional authorities, the prohibition as an interim measure of any construction work (Article 35 combined with Articles 14 and 15 of the 1947 Act). Article 15 of the Act provides as follows (translation from the Swedish): "If a question is raised concerning a request for the adoption of a master plan for a certain zone or for the amendment of a master plan that has already been approved, the County Administrative Board may, at the request of the municipality, prohibit all new construction (nybyggnad) in that zone. The prohibition shall remain in force until a decision in the matter has been taken by the municipal council, but not for more than one year. Where necessary, the County Administrative Board may, at the request of the municipality, extend the validity of the prohibition on contruction by a maximum of two years at a time. Exemptions form the prohibition on construction referred to in the preceding paragraph may be granted by the County Administrative Board or, in accordance with rules laid down by the Government, by the building Board (byggnadsnämnd)." The same principle applies where the authorities contemplate adopting a new city plan or amending an existing one (Article 35 of the 1947 Act). The principle concerns only new constructions, but Article 158 of the 1947 Act states that the provisions on new constructions shall extend "to such alterations to existing premises as may be classified as new construction under rules laid down by the Government". A rule to this effect appears in Article 75 of the 1959 Building Ordinance (byggnadsstadgan), which reads as follows (translation from the Swedish): "The expression ‘ new construction ’ shall mean: (a) the erection of entirely new premises; (b) the horizontal or vertical extension of existing premises; (c) any rebuilding of the exterior or interior of premises or any alteration thereto which, on account of its scale, may be equated to rebuilding; (d) the complete or partial conversion of premises for a use substantially different from their previous one; (e) such alteration to premises as results in their no longer being in conformity with the adopted master plan, city plan or building plan (byggnadsplan) or the regulations on building activities in zones situated outside the areas covered by city plans or building plans: and (f) any other alteration to premises which, in their present state, are not in conformity with the above-mentioned plans or regulations, except in the case of residential premises comprising not more than two dwellings or of outbuildings belonging to such premises. However, for the purposes of the present Article, the expression "new construction" shall not include the installation of central heating, water closets or other sanitary amenities in premises which, even if such installation has not been authorised, are expected to remain in their present state for a considerable length of time." 42. In his report of 1967, the Parliamentary Ombudsman (Justitieombudsmannen) referred to the consequences of long-term prohibitions on construction and envisaged certain solutions (translation from the Swedish): "As for as can be ascertained from the facts, the property owners in the Borås and Östersund cases cannot have expected to reap any advantages from the town-planning scheme. This means that the scheme could not provide them with any compensation for the prejudicial effects that were clearly occasioned by the long-term prohibitions. If in such cases one does not institute some means of protecting property owners against the prejudicial effect of long-term prohibitions, then - in order to render the implementation of town-planning schemes less expensive for municipalities - one or more property owners will themselves have to bear the prejudicial effects of a prohibition which has been imposed mainly in the interests of the community to settle questions of town planning within a reasonable time. Such a system is irreconcilable with the position that should obtain in a State governed by the rule of law. What arrangements should be made to protect a property owner against the prejudicial effects of temporary prohibitions on construction that remain in force for a lengthy period can hardly be stated without a thorough study of the problem. However, one possibility would be to set a maximum time-limit for the validity of temporary prohibitions. Nevertheless, such a solution could hardly be regarded as compatible with current requirements, for difficulties over determining what form future development should take mean that long delays cannot always be avoided. A preferable method would be to introduce a right for the property owner to seek compensation from the municipality for any loss he may establish or to require that it purchase the land once the prohibition has been in force for more than a certain period. There should, however, be a condition that the prohibition has been in force for quite a long time and has occasioned significant prejudicial effects that cannot be compensated by the advantages which the owners could be expected to gain through the town-planning scheme. In view of the foregoing, my opinion is that there should be a study of the question of introducing protection for private landowners against the prejudicial effects of unreasonably long temporary prohibitions on construction." (Justitieombudsmannens ämbetsberättelse 1967, pp. 478-479). B. Remedies against the public authorities 1. Appeals against municipal councils ’ decisions 43. At the time when the applicants referred the matter to the Commission, the Municipal Act 1953 and, in the case of the capital, the City of Stockholm Act 1957 provided for and regulated a right of appeal (kommunalbesvär) against decisions by municipalities. These Acts enabled any local resident - with certain exceptions - to challenge a municipal council ’ s decisions before the County Administrative Board. Such an appeal could be based on the following grounds only: failure to observe the statutory procedures, infringement of the law, ultra vires conduct, violation of the appellant ’ s own rights or application of powers for an improper purpose. The appeal had to reach the County Administrative Board within three weeks of the date on which approval of the minutes of the decision had been announced on the municipal notice-board; the place where the minutes might be consulted was also indicated on the notice-board. Unless otherwise provided, the County Administrative Board ’ s decision could, within three weeks from its notification to the appellant, be the subject of an appeal to the Supreme Administrative Court (regeringsrätten). Almost identical provisions now appear in Chapter 7 of the Municipal Act 1977 (kommunallagen). They were slightly amended in 1980, with effect from 1 January 1981, in that the appeal now has to be made to the Administrative Court of Appeal (kammarrätten) and not to the County Administrative Board. 44. The above-mentioned rules apply to a municipal council ’ s decision to request the Government to issue or extend an expropriation permit. On the other hand, they do not apply to a decision to request the County Administrative Board to issue or extend a prohibition on construction: such a decision is, in fact, not open to any appeal to an administrative court. 2. Remedies against acts of the administration (a) Administrative appeals 45. In Sweden, administrative functions devolve largely on administrative authorities whose decision-making machinery is independent of the Government: such authorities do not come under any Ministry, and neither the Government nor the various Ministries may give them orders or instructions on how they should apply the law in this or that case. 46. It is often possible, however, to appeal to the Government against administrative authorities ’ decisions. Thus, a decision by the County Administrative Board to issue or extend a prohibition on construction may be challenged by means of an appeal to the Government (Article 150 par. 2 of the 1947 Act). (b) Judicial appeals 47. Generally speaking, the Swedish administration is not subject to supervision by the ordinary courts. Those courts hear appeals against the State only in contractual matters, on questions of extra contractual liability and, under some statutes, in respect of administrative decisions. 48. Judicial review of the administration ’ s acts is, therefore, primarily a matter for administrative courts. These courts, which had their origin within the administration itself, comprise three levels: the County Administrative Court (länsrätterna); the Administrative Courts of Appeal; and the Supreme Administrative Court, which was set up in 1909 on the pattern of certain foreign institutions, such as the French Conseil d ’ État, but differs therefrom in certain fundamental respects. These courts are composed of independent judges appointed for life and, as a rule, they enjoy wide powers which enable them not only to set aside administrative acts but also to modify or replace them. In practice, it is very common for the lawfulness of such acts to be challenged. There is, however, an important exception to this principle, in that no appeal may be made against decisions of the Government. 3. Appeals against acts of the Government 49. Certain administrative cases - those with the most important political or financial implications - are reserved for decision by the Government as the first and last instance. Expropriation permits fall within this category (see paragraph 37 above). Although the Public Administration Act 1971 (förvaltningslagen) is not formally applicable to proceedings before the Government, they must be conducted in compliance with a number of principles: the right of the person concerned to have access to all the documents in the case; an obligation on the authority to inform him of any document added to the file and to give him an opportunity of stating his opinion thereon; the right of the person concerned to express his views orally if he so wishes. Before the Government take a decision on a request for an expropriation permit, the request will be submitted to the County Administrative Board which will prepare the file. The Board must, notably, give the property owner an opportunity to present his views on the request; it will also hear such public authorities as may have an interest in the matter. After collecting the necessary data, the Board will transmit them to the Government which will then be in a position to arrive at their decision. 50. Cases examined by the Government give rise to decisions which, as a rule, are not open to appeal. However, in special cases it is possible to lodge an extraordinary appeal, of limited scope, known as an application for re-opening of the proceedings (resningsansökan). Prior to 1 January 1975 such applications - which may also relate to a decision taken by the Government in an appellate capacity - were made to the Supreme Court. Since that date they are made to the Supreme Administrative Court (Chapter 11, Article 11, of the Constitution). The grounds for re-opening proceedings are to be found - although the provision is not formally binding on the Supreme Administrative Court - in Chapter 58, Article 1, of the Code of Judicial Procedure (rättegångsbalken), which reads (translation from the Swedish): "Once a judgment in a civil case has acquired the authority of res judicata, the re-opening of the proceedings in the interests of any of the parties may be ordered: 1. if a member or an official of the court has been guilty of a criminal offence or of misconduct in connection with the litigation or if an offence in connection with the litigation has been committed by a lawyer or legal representative, and if such offence or misconduct can be assumed to have affected the outcome of the case; 2. if a document submitted in evidence was forged or if a party examined on oath, a witness, an expert or an interpreter made false statements, and if such document or statements can be assumed to have affected the outcome of the case; 3. if there have come to light facts or evidence which, had they been put before the court previously, would probably have led to a different outcome; or 4. if the application of the law underlying the judgment is manifestly inconsistent with the law itself. Re-opening of the proceedings on the ground referred to in paragraph 3 above may not be ordered unless the party concerned establishes that in all probability he was unable to put the facts or evidence before the first instance or a superior court or that he had some other valid reason for not doing so." If, in a case like the present one, the Supreme Administrative Court accepts that the proceedings should be re-opened, it may either re-examine the whole case itself or refer it back to the Government. The very numerous decisions taken by the Government each year in fact give rise to very few applications for re-opening of the proceedings. C. Liability of public authorities 51. In the past, State and municipal bodies incurred no liability in respect of decisions which they took in the exercise of public authority, and no compensation could therefore be awarded for damage resulting from such decisions, although there were some doubts about the scope of this immunity. Swedish law on this subject was derived from case-law, specific statutes and unwritten principles. 52. The same law still applies on many points, but on 1 July 1972 the Civil Liability Act (skadeståndslagen) entered into force. This Act consolidates and develops a branch of the law governing compensation for damage in extra-contractual matters. It provides that the State and the municipalities are not civilly liable for damage caused by their acts. It does, however, make one radical change: the acts of the public authorities may now give rise to an entitlement to compensation in the event of fault or negligence (Chapter 3, Article 2). However, the legislature imposed an important restriction on this new principle, in that, save where the decisions in question have been set aside or modified, an action for damages "may not lie" in respect of decisions taken by Parliament, the Government, the Supreme Court, the Supreme Administrative Court and the National Social Security Court (Chapter 3, Article 7). According to authoritative commentaries, the court must, of its own motion, declare the action inadmissible in such case. PROCEEDINGS BEFORE THE COMMISSION 53. The applicants referred the matter to the Commission on 15 August 1975. They complained of unjustifiable interference with their right to peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1 (P1-1). They also alleged a violation of Article 6 par. 1 (art. 6-1) of the Convention on the ground that the questions of expropriation and compensation had not been determined within a reasonable time by the Swedish courts, as well as a breach of Article 13 (art. 13) on the ground that they had had no effective remedy before a national authority against the infringements of their rights, which resulted from the expropriation permits and the prohibitions on construction. Lastly, they alleged a violation of Article 14 (art. 14) and relied on Articles 17 and 18 (art. 17, art. 18). 54. The Commission joined the two applications on 12 October 1977 in accordance with Rule 29 of its Rules of Procedure, and declared them admissible on 5 March 1979. 55. In its report of 8 October 1980 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion that there had been a violation of Article 13 (art. 13) of the Convention (ten votes to two, with four abstentions). On the other hand, it concluded that there had been no breach of Article 1 of Protocol No. 1 (P1-1) (ten votes to three), of Article 6 par. 1 (art. 6-1) (eleven votes to five) or of Articles 14, 17 and 18 (art. 14, art. 17, art. 18) (unanimously) of the Convention. The report contains three separate opinions. AS TO THE LAW I. THE ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1) 56. The applicants complained of the length of the period during which the expropriation permits, accompanied by prohibitions on construction, affecting their properties had been in force. It amounted, in their view, to an unlawful infringement of their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1 (P1-1), which reads as follows: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." 57. In its Marckx judgment of 13 June 1979, the Court described as follows the object of this Article (P1-1): "By recognising that everyone has the right to the peaceful enjoyment of his possessions, Article 1 (P1-1) is in substance guaranteeing the right of property. This is the clear impression left by the words ‘ possessions ’ and ‘ use of property ’ (in French: ‘ biens ’, ‘ propriété ’, ‘ usage des biens ’ ); the ‘ travaux préparatoires ’, for their part, confirm this unequivocally: the drafters continually spoke of" ‘ right of property ’ or ‘ right to property ’ to describe the subject-matter of the successive drafts which were the forerunners of the present Article 1 (P1-1)." (Series A no. 31, p. 27, par. 63) It has to be determined whether the applicants can complain of an interference with this right and, if so, whether the interference was justified. 1. The existence of an interference with the applicants ’ right of property 58. The applicants did not dispute that the expropriation permits and prohibitions on construction in question were lawful in themselves. On the other hand, they complained of the length of the time-limits granted to the City of Stockholm for the institution of the judicial proceedings for the fixing of compensation for expropriation (five years, extended for three, then for five and finally for ten years, in the case of the Sporrong Estate; ten years in the case of Mrs. Lönnroth; see paragraphs 11-14 and 20 above). They also complained of the fact that the expropriation permits and the prohibitions on construction had been maintained in force for a lengthy period (twenty-three and eight years for the permits; twenty-five and twelve years for the prohibitions; see paragraphs 18 and 25 above). They pointed to the adverse effects on their right of property allegedly occasioned by these measures when they were combined in such a way. They contended that they had lost the possibility of selling their properties at normal market prices. They added that they would have run too great a risk had they incurred expenditure on their properties and that if all the same they had had work carried out after obtaining a building permit, they would have been obliged to undertake not to claim - in the event of expropriation - any indemnity for the resultant capital appreciation. They also alleged that they would have encountered difficulties in obtaining mortgages had they sought them. Finally, they recalled that any "new construction" on their own land was prohibited. Though not claiming that they had been formally and definitively deprived of their possessions, the Sporrong Estate and Mrs. Lönnroth alleged that the permits and prohibitions at issue subjected the enjoyment and power to dispose of their properties to limitations that were excessive and did not give rise to any compensation. Their right of property had accordingly, so they contended, been deprived of its substance whilst the measures in question were in force. 59. The Government accepted that market forces might render it more difficult to sell or let a property that was subject to an expropriation permit and that the longer the permit remained in force the more serious this problem would become. They also recognised that prohibitions on construction restricted the normal exercise of the right of property. However, they asserted that such permits and prohibitions were an intrinsic feature of town planning and did not impair the right of owners to "the peaceful enjoyment of (their) possessions", within the meaning of Article 1 of Protocol No. 1 (P1-1). 60. The Court is unable to accept this argument. Although the expropriation permits left intact in law the owners ’ right to use and dispose of their possessions, they nevertheless in practice significantly reduced the possibility of its exercise. They also affected the very substance of ownership in that they recognised before the event that any expropriation would be lawful and authorised the City of Stockholm to expropriate whenever it found it expedient to do so. The applicants ’ right of property thus became precarious and defeasible. The prohibitions on construction, for their part, undoubtedly restricted the applicants ’ right to use their possessions. The Court also considers that the permits and prohibitions should in principle be examined together, except to the extent that analysis of the case may require a distinction to be drawn between them. This is because, even though there was not necessarily a legal connection between the measures (see paragraph 35 above) and even though they had different periods of validity, they were complementary and had the single objective of facilitating the development of the city in accordance with the successive plans prepared for this purpose. There was therefore an interference with the applicants ’ right of property and, as the Commission rightly pointed out, the consequences of that interference were undoubtedly rendered more serious by the combined use, over a long period of time, of expropriation permits and prohibitions on construction. 2. The justification for the interference with the applicants ’ right of property 61. It remains to be ascertained whether or not the interference found by the Court violated Article 1 (P1-1). That Article (P1-1) comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph. The Court must determine, before considering whether the first rule was complied with, whether the last two are applicable. (a) The applicability of the second sentence of the first paragraph 62. It should be recalled first of all that the Swedish authorities did not proceed to an expropriation of the applicants ’ properties. The applicants were therefore not formally "deprived of their possessions" at any time: they were entitled to use, sell, devise, donate or mortgage their properties. 63. In the absence of a formal expropriation, that is to say a transfer of ownership, the Court considers that it must look behind the appearances and investigate the realities of the situation complained of (see, mutatis mutandis, the Van Droogenbroeck judgment of 24 June 1982, Series A no. 50, p. 20, par. 38). Since the Convention is intended to guarantee rights that are "practical and effective" (see the Airey judgment of 9 October 1979, Series A no. 32, p. 12, par. 24), it has to be ascertained whether that situation amounted to a de facto expropriation, as was argued by the applicants. In the Court ’ s opinion, all the effects complained of (see paragraph 58 above) stemmed from the reduction of the possibility of disposing of the properties concerned. Those effects were occasioned by limitations imposed on the right of property, which right had become precarious, and from the consequences of those limitations on the value of the premises. However, although the right in question lost some of its substance, it did not disappear. The effects of the measures involved are not such that they can be assimilated to a deprivation of possessions. The Court observes in this connection that the applicants could continue to utilise their possessions and that, although it became more difficult to sell properties in Stockholm affected by expropriation permits and prohibitions on construction, the possibility of selling subsisted; according to information supplied by the Government, several dozen sales were carried out (see paragraph 30 above). There was therefore no room for the application of the second sentence of the first paragraph in the present case. (b) The applicability of the second paragraph 64. The prohibitions on construction clearly amounted to a control of "the use of [the applicants ’ ] property", within the meaning of the second paragraph. 65. On the other hand, the expropriation permits were not intended to limit or control such use. Since they were an initial step in a procedure leading to deprivation of possessions, they did not fall within the ambit of the second paragraph. They must be examined under the first sentence of the first paragraph. (c) Compliance with the first sentence of the first paragraph as regards the expropriation permits 66. The applicants ’ complaints concerned in the first place the length of the time-limits granted to the City of Stockholm, which they regarded as contrary to both Swedish law and the Convention. 67. The 1917 Act did not contain any provisions either on the length of the time-limit during which the expropriating authority had to institute judicial proceedings for the fixing of compensation for expropriation, or on the extension of the validity of permits. According to the Sporrong Estate and Mrs. Lönnroth, it had been the established practice since the entry into force of the Act for the normal time-limit for service of a summons to appear before the Real Estate Court to be one year. Since the time-limits in the present case were as long as five and ten years respectively, it was alleged that there was no legal basis for the original permits; the same was said to apply to the three extensions of the permit affecting the property of the Sporrong Estate. The respondent State replied that the issue and the extension of the permits were in conformity with Swedish law: it argued that since the Government were entitled to fix the period of validity of the original permit, they were also empowered, in the absence of any provision to the contrary, to extend it. 68. The Court does not consider that it has to resolve this difference of opinion over the interpretation of Swedish law. Even if the permits complained of were not contrary to that law, their conformity therewith would not establish that they were compatible with the right guaranteed by Article 1 (P1-1). 69. The fact that the permits fell within the ambit neither of the second sentence of the first paragraph nor of the second paragraph does not mean that the interference with the said right violated the rule contained in the first sentence of the first paragraph. For the purposes of the latter provision, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights (see, mutatis mutandis, the judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, p. 32, par. 5). The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of Article 1 (P1-1). The Agent of the Government recognised the need for such a balance. At the hearing on the morning of 23 February 1982, he pointed out that, under the Expropriation Act, an expropriation permit must not be issued if the public purpose in question can be achieved in a different way; when this is being assessed, full weight must be given both to the interests of the individual and to the public interest. The Court has not overlooked this concern on the part of the legislature. Moreover, it finds it natural that, in an area as complex and difficult as that of the development of large cities, the Contracting States should enjoy a wide margin of appreciation in order to implement their town-planning policy. Nevertheless, the Court cannot fail to exercise its power of review and must determine whether the requisite balance was maintained in a manner consonant with the applicants ’ right to "the peaceful enjoyment of [their] possessions", within the meaning of the first sentence of Article 1 (P1-1). 70. A feature of the law in force at the relevant time was its inflexibility. With the exception of the total withdrawal of the expropriation permits, which required the agreement of the municipality, the law provided no means by which the situation of the property owners involved could be modified at a later date. The Court notes in this connection that the permits granted to the City of Stockholm were granted for five years in the case of the Sporrong Estate - with an extension for three, then for five and finally for ten years - and for ten years in the case of Mrs. Lönnroth. In the events that happened, they remained in force for twenty-three years and eight years respectively. During the whole of this period, the applicants were left in complete uncertainty as to the fate of their properties and were not entitled to have any difficulties which they might have encountered taken into account by the Swedish Government. The Commission ’ s report furnishes an example of such difficulties. Mrs. Lönnroth had requested the Government to withdraw the expropriation permit. The City Council replied that the existing plans did not authorise any derogation; the Government, for their part, refused the request on the ground that they could not revoke the permit without the Council ’ s express consent (see paragraph 21 above). The Courts has not overlooked the interest of the City of Stockholm in having the option of expropriating properties in order to implement its plans. However, it does not see why the Swedish legislation should have excluded the possibility of re-assessing, at reasonable intervals during the lengthy periods for which each of the permits was granted and maintained in force, the interests of the City and the interests of the owners. In the instant case, the absence of such a possibility was all the less satisfactory in that the town-planning schemes underlying the expropriation permits and, at the same time, the intended use prescribed for the applicants ’ properties were modified on several occasions. 71. As is shown by the official statement of reasons accompanying the Bill in which the 1972 Act originated, the Swedish Government conceded that "in certain respects, the existing system is a source of disadvantages for the property owner": "Naturally, the mere issue of an expropriation permit often places him in a state of uncertainty. In practice, his opportunities for disposing of his property by selling it, assigning the use thereof or having premises erected thereon are considerably restricted. He may also have difficulty in deciding whether to incur expenditure on upkeep or modernisation. The disadvantages resulting from an expropriation permit are, of course, increased if the judicial proceedings are not set in motion for a long time." (Kungl. Maj:ts proposition nr. 109, 1972, p. 227) The 1972 Act takes partial account of these problems. Admittedly, it does not provide for compensation to be granted to property owners who may have been prejudiced by reason of the length of the validity of the permit; however, it does enable them to obtain a reduction of the time-limit for service of the summons to appear before the Real Estate Court if they establish that the fact that the question of expropriation remains pending has caused significantly more serious prejudice (see paragraph 37 above). Since the Act was not applicable in the present case (see paragraph 39 above), it could not have been of assistance to the applicants in overcoming any difficulties which they might have encountered. 72. The Court also finds that the existence throughout this period of prohibitions on construction accentuated even further the prejudicial effects of the length of the validity of the permits. Full enjoyment of the applicants ’ right of property was impeded for a total period of twenty-five years in the case of the Sporrong Estate and of twelve years in the case of Mrs. Lönnroth. In this connection, the Court notes that in 1967 the Parliamentary Ombudsman considered that the adverse effects on property owners that could result from extended prohibitions were irreconcilable with the position that should obtain in a State governed by the rule of law (see paragraph 42 above). 73. Being combined in this way, the two series of measures created a situation which upset the fair balance which should be struck between the protection of the right of property and the requirements of the general interest: the Sporrong Estate and Mrs. Lönnroth bore an individual and excessive burden which could have been rendered legitimate only if they had had the possibility of seeking a reduction of the time-limits or of claiming compensation. Yet at the relevant time Swedish law excluded these possibilities and it still excludes the second of them. In the Court ’ s view, it is not appropriate at this stage to determine whether the applicants were in fact prejudiced (see, mutatis mutandis, the above-mentioned Marckx judgment, Series A no. 31, p. 13, par. 27): it was in their legal situation itself that the requisite balance was no longer to be found. 74. The permits in question, whose consequences were aggravated by the prohibitions on construction, therefore violated Article 1 (P1-1), as regards both applicants. (d) Compliance with Article 1 (P1-1) as regards the prohibitions on construction 75. In view of the foregoing, the Court does not consider it necessary to determine whether the prohibitions on construction, taken alone, also infringed Article 1 (P1-1). II. THE ALLEGED VIOLATION OF ARTICLES 17 AND 18, OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 17+P1-1, art. 18+P1-1). 76. The applicants also relied on Articles 17 and 18 (art. 17, art. 18) of the Convention. They claimed that the exercise of their right to the peaceful enjoyment of their possessions was subjected to "restrictions that were more far-reaching than those contemplated" by Article 1 of Protocol No. 1 (P1-1) and had a "purpose" that is not mentioned in that Article. The Commission concluded unanimously that there had been no violation. Having found that there was a breach of Article 1 of Protocol No 1. (P1-1), the Court does not consider it necessary also to examine the case under Articles 17 and 18 (art. 17, art. 18) of the Convention. III. THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1) 77. The applicants invoked Article 14 of the Convention, taken together with Article 1 of Protocol No. 1 (art. 14+P1-1), and maintained that they had been victims of discrimination as compared with two categories of owners, namely those whose properties were not expropriated of owners, namely those whose properties were expropriated in an manner consistent with Swedish law and the Convention. The Court does not accept this argument, which is not supported by any evidence in the material before it. IV. THE ALLEGED VIOLATION OF ARTICLE 6 PAR. 1 (art. 6-1) OF THE CONVENTION 78. According to the applicants, their complaints concerning the expropriation permits affecting their properties were not, and could not have been, heard by the Swedish courts; in this respect they alleged a violation of Article 6 par. 1 (art. 6-1) of the Convention which reads as follows: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..." A. The applicability of Article 6 par. 1 (art. 6-1) 79. The applicants ’ right of property is without doubt a "civil right" and there was in fact no dispute on this point. It remains to be ascertained whether that right was the subject of a "contestation" (dispute) between the applicants and the Swedish authorities. 80. The Commission, whilst recognising that expropriation proceedings concerned a civil right, took the view that the expropriation permits issued under the 1917 Act did not amount to a determination of civil rights and obligations of the owners. It concluded that the administrative proceedings whereby the permits affecting the applicants ’ properties were issued and subsequently extended did not fall within the ambit of Article 6 par. 1 (art. 6-1). The Court is unable to share this view. In its Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, it pointed out that Article 6 par. 1 (art. 6-1) "is not applicable solely to proceedings which are already in progress: it may also be relied on by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 par. 1 (art. 6-1)" (Series A no. 43, p. 20, par. 44, with a reference to the Golder judgment of 21 February 1975, Series A no. 18). It is of little consequence that the contestation (dispute) concerned an administrative measure taken by the competent body in the exercise of public authority (see, mutatis mutandis, the Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, par. 94, and the König judgment of 28 June 1978, Series A no. 27, p. 32, par. 94). In the present case, the applicants emphasised that they had not had the possibility of applying to a tribunal having jurisdiction to examine the situation created by the issue or extension of the expropriation permits. 81. As regards the actual lawfulness of such issue or extension, the Sporrong Estate and Mrs. Lönnroth cited the practice whereby the time-limit for service of a summons to appear before the Real Estate Court was normally one year (see paragraph 67 above); they maintained that the long time-limits granted in their cases were not in accordance with Swedish law. The Government, for their part, disputed this interpretation. The Court recalls that it does not consider that it has to resolve this difference of opinion (see paragraph 68 above). However, the existence and the serious nature of that difference demonstrate that an issue did arise under Article 6 par. 1 (art. 6-1). Given that the applicants regarded as unlawful the adoption or extension of measures which affected their right of property and had been in force for periods of the kind encountered in their cases, they were entitled to have this question of domestic law determined by a tribunal. 82. The applicants also complained of the fact that they were unable to take legal proceedings to seek redress for the loss occasioned both by the expropriation permits and by the prohibitions on construction. The Court, having just found that there was a contestation (dispute), does not deem it necessary to examine this argument. 83. To sum up, the expropriation permits affecting the applicants ’ properties related to a "civil" right and, as regards their period of validity, gave rise to a "contestation" (dispute), within the meaning of Article 6 par. 1 (art. 6-1). B. Compliance with Article 6 par. 1 (art. 6-1) 84. The Court has to establish Swedish law conferred on the applicants the "right to a court", one aspect of which is the right to access, that is the right to institute proceedings before a court having competence in civil matters (see the above-mentioned Golder judgment, Series A no. 18, p. 18, par. 36). It therefore has to be ascertained whether the Sporrong Estate and Mrs Lönnroth could have instituted legal proceedings to challenge the lawfulness of the decisions of the City Council and of the Government concerning the issue or extension of the long-term expropriation permits. 1. Review of the lawfulness of the City Council ’ s decisions 85. The Government stated it would have been open to the applicants to challenge the lawfulness of the decisions of the City of Stockholm to request the Government to issue or extend the said permits. It is true that, in so far as those decisions had come to the applicants ’ knowledge - despite the absence, according to them, of any individual notification -, they could have referred the matter to the County Administrative Board and then, if necessary, to the Supreme Administrative Court (see paragraph 43 above). However, the requests were only preparatory steps which, in themselves, did not at that stage interfere with a civil right. Furthermore, their lawfulness did not necessarily depend on the same criteria as the lawfulness of the final decisions taken by the Government in this respect. 2. Review of the lawfulness of the Government ’ s decisions 86. The Government ’ s decisions on the issue and extension of the permits are not open to appeal before the administrative courts. Admittedly, owners can challenge the lawfulness of such decisions by requesting the Supreme Administrative Court to re-open the proceedings. However, they must in practice rely on grounds identical or similar to those set out in Chapter 58, Article 1, of the Code of Judicial Procedure (see paragraph 50 above). Furthermore, this is an extraordinary remedy - as the Government admitted - and is exercised but rarely. When considering the admissibility of such an application, the Supreme Administrative Court does not examine the merits of the case; at that stage, it therefore does not undertake a full review of measures affecting a civil right (see, mutatis mutandis, the above-mentioned Le Compte, Van Leuven and De Meyere judgment, Series A no. 43, pp. 23, 24 and 26, par. 51, 54 and 60). It is only where the Supreme Administrative Court has declared the application admissible that such a review can be effected, either by that court itself or, if it has referred the case back to a court or authority previously dealing with the matter, by the latter court or authority. In short, the said remedy did not meet the requirements of Article 6 par. 1 (art. 6-1). 87. To sum up, the case (in French: cause) of the Sporrong Estate and Mrs. Lönnroth could not be heard by a tribunal competent to determine all the aspects of the matter. As regards both applicants, there has therefore been a violation of Article 6 par. 1 (art. 6-1). V. THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION 88. The applicants maintained that they were deprived of any effective remedy before a national "authority" in respect of the violations of which they complained; they relied on Article 13 (art. 13) which provides: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." In its report, the Commission expressed the opinion that there had been a breach of this Article (art. 13). The Government contested this opinion, especially in their memorial of 31 July 1981, which was exclusively devoted to this issue. Having regard to its decision on Article 6 par. 1 (art. 6-1), the Court considers that it is not necessary to examine the case under Article 13 (art. 13); this is because its requirements are less strict than, and are here absorbed by, those of Article 6 par. 1 (art. 6-1) (see the above-mentioned Airey judgment, Series A no. 32, p. 18, par. 35, and, mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pl. 46, par. 95, and the above-mentioned Golder judgment Series A no. 18, pp. 15-16, par. 33). VI. THE APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 89. At the hearings of 23 February 1982, the applicants ’ counsel stated that should the Court find a violation, his clients would seek under Article 50 (art. 50) just satisfaction for pecuniary loss and for legal and related expenses. He considered that their claims would to a large extent depend on the tenor of the judgment to be given and therefore suggested that examination of this issue be adjourned. The Government confined themselves to indicating that they reserved their position on the application of Article 50 (art. 50). Accordingly, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision. The Court is therefore obliged to reserve it and fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicants. | The European Court of Human Rights held that there had been a violation of Article 1 (protection of property) of Protocol No. 1 to the Convention, finding that the applicants bore an individual and excessive burden which could have been rendered legitimate only if they had had the possibility of seeking a reduction of the time-limits or of claiming compensation. It also held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention, finding that the applicants’ case could not be heard by a tribunal competent to determine all the aspects of the matter. In its judgment on just satisfaction of 18 December 1984, the Court further decided that Sweden was to pay, for damage, 800,000 Swedish crowns to the first and 200,000 crowns to the second applicant. |
685 | Searches of journalists’ home or workplace, accessing of the phone data and/or seizure of journalistic material | II. RELEVANT DOMESTIC LAW AND PRACTICE 23. The relevant provisions of the Law of 1 September 1988 on civil liability of the State and the public authorities reads as follows: Section 1 “The State and other public-law entities shall be liable, in the performance of their respective public service duties, for any damage caused by the defective functioning of their administrative and judicial services, subject to res judicata. However, where it would be unfair, having regard to the nature and purpose of the act causing the damage, to confer on the citizen responsibility for making good the damage suffered, compensation shall be payable even where a dysfunction in the service has not been proved, provided that the damage is extraordinary and exceptional and cannot be attributed to negligence on the part of the victim.” 24. The relevant provisions of the Youth Welfare Act of 10 August 1992 read as follows: Section 38 “It is prohibited to publish or disseminate the deliberations of the youth court in any manner whatsoever. The same applies to publishing or disseminating any facts which are liable to disclose the identity or personality of minors who are under prosecution or subject to one of the measures laid down in this Act. ... The offences described in this Article shall be punishable by a prison sentence of between eight days and six months and a fine of between EUR 251 and EUR 10,000, or either of these two penalties.” 25. The provisions of the Criminal Code on calumny and defamation read as follows: Article 443 “Anyone who, in the circumstances set out below, maliciously accuses another person of something which is liable to damage this person’s repuration or to expose him or her to public scorn, shall be guilty of calumny if, in cases where it is possible by law to prove the accusation, no such proof has been supplied. He or she shall be guilty of defamation if the law does not allow such proof to be adduced. The person responsible within the meaning of section 21 of the Law of 8 June 2004 on freedom of expression in the media shall not be ... guilty of calumny or defamation. 1) where, in cases where it is possible by law to prove the accusation, such proof has not been supplied but the person responsible within the meaning of the aforementioned section 21, provided that he or she has taken the requisite legal steps, proves by means of any available remedy that he or she had sufficient reason to conclude that the accusations reported were accurate and that there was an overriding public interest in disseminating the information in question; ...” 26. Section 21 of the Law of 8 June 2004 on freedom of expression in the media reads as follows: “Civil or criminal liability for any fault committed via the media shall be incurred by the specific employee, where he or she is known, failing which the editor or broadcaster shall be responsible.” 27. The Code of Criminal Procedure does not explicitly provide for the voluntary presentation of items when judicial investigations are initiated. Seizures ordered by a court constitute the normal mode of attachment of items required for the purposes of the investigation. The relevant provisions on searches and seizures in the Code of Criminal Procedure read as follows: Article 51 § 1 “The investigating judge shall, in accordance with the law, conduct all the investigative measures which he or she deems useful for establishing the truth. He or she shall collect and verify, with equal care, the facts and circumstances incriminating or exonerating the accused.” Article 65 § 1 “Searches shall be conducted in any place in which objects that would assist in establishing the truth may be found." Article 66 § 1 “The investigating judge shall carry out the seizure of any objects, documents, effects and other items referred to in Article 31 § 3.” Article 31 § 3 “The investigating judge shall seize the objects, documents and effects which were used to commit the crime or were intended to commit it, and those which constituted the object of the crime, as well as any apparent proceeds from the crime, and also, generally, anything which may assist in establishing the truth and whose use may impede progress in the investigation, or which is liable to confiscation or restitution.” THE LAW I. ADMISSIBILITY 28. The Government raised an objection of inadmissibility for non-exhaustion of domestic remedies. They submitted that the applicant company should have brought an action for damages against the State for the defective functioning of State judicial services, under section 1 of the Law of 1 September 1988 on the civil liability of the State and the public authorities (hereafter “the 1988 Law”). In support of this objection the Government relied on a judicial finding by a domestic court against the State for the excessive length of a set of judicial proceedings. The Government explained that the domestic courts could not have adduced the principle of res judicata in the case of the applicant company because decisions given by the chambre du conseil did not constitute res judicata. The Government also enclosed a 16 December 2005 judgment from the Luxembourg District Court and a judgment of 10 December 2009 in which the Court of Appeal had upheld the District Court’s judgment, declaring the Luxembourg State liable for the damage caused by a search, pursuant to section 1(1) of the 1988 Law. Otherwise the applicant company could always have sought compensation for the damage under section 1(1) of the 1988 Law, which provided for compensation for victims of damage, even where the functioning of State services had not been defective, in cases of flagrant injustice. 29. The applicant company argued that the objection of inadmissibility should be dismissed on the grounds that the effectiveness of the remedy mentioned by the Government was only established in respect of cases of unreasonable length of proceedings. Moreover, it submitted that section 1 of the 1988 Law included an explicit reservation concerning the res judicata principle which meant that courts dealing with actions for damages pursuant to this Law could not find against the State for any injustices suffered by litigants as the result of a judicial decision (such as the judgment given in the instant case by the chambre du conseil of the Court of Appeal on 27 October 2009) constituting res judicata. 30. The Court reiterates that only remedies whichof Article 35 § 1 of the Convention require to be exhausted are those which relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Leandro Da Silva v. Luxembourg, no. 30273/07, § 42, 11 February 2010, and Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)). 31. The Court considers that the examples given by the Government in which the remedy under section 1(1) of the 1988 Law proved successful differ from the instant case. In length of proceedings cases, the diligence of the courts is under scrutiny, not the quality of their judicial activity. On the other hand, the case which was determined with final effect by the 10 December 2009 judgment of the Court of Appeal concerned not the principle of the search but the manner of its execution. The Court of Appeal in fact stated that “ in proceedings seeking to prove State liability vis-à-vis the execution of a search ordered by the investigating judge, it is unacceptable to focus the deliberations on the issue of the lawfulness, expediency and necessity of this investigative measure ”. Accordingly, the Government have not proved that the courts applied to under the 1988 Law would have jurisdiction to assess the necessity of an investigative measure, as the evidence produced shows that only the investigating judge holds such jurisdiction. However, the Government did not establish that it would still have been possible to apply to the investigating judge on this matter. Furthermore, the Government provided no examples of litigants obtaining compensation pursuant to section 1(2) of the 1988 Law. The Government have therefore failed to demonstrate the existence of an effective remedy which was not attempted. 32. Under these circumstances, the objection of inadmissibility raised by the Government must be dismissed. 33. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 34. The applicant company alleged that the search conducted on the premises of a newspaper which it published and owned had infringed the inviolability of its registered office (its “home”) and was disproportionate in the light of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his ... home .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 35. The Government contested this argument. They disputed the very fact that there could have been any interference, arguing that the journalist working for the applicant company had voluntarily cooperated in the measure in issue in order to demonstrate that he had taken the necessary steps within the meaning of Article 443 of the Criminal Code. In the alternative, the Government contended that the interference in question had been legally justified, had pursued the legitimate aims of preventing disorder and crime and protecting the rights and freedoms of others, and that it had been necessary in a democratic society. Confronted with facts which had constituted prima facie evidence of offences, it had been incumbent on the judicial authorities to initiate the requisite investigation for ascertaining the circumstances of the case in hand. The Government submitted that publishing companies could not be exempted from the implementation of criminal legislation, and that the impugned article had been published under a name which did not appear in the list of journalists officially recognised in Luxembourg, a fact which had necessitated investigations in order to identify the author of the article. Moreover, the interference had been fairly unintrusive given that the police officers had not actively searched for documents, all the documents seized had been voluntarily handed over by the journalist and the search and seizure had actually been in the journalist’s and the publishing house’s best interests. Furthermore, the investigating judge had only being doing his duty, since he had been obliged to gather both incriminating and exonerating evidence and since seizure was the only way to take possession of objects, even where they were handed over voluntarily. 36. The applicant company, on the other hand, submitted that it had been forced to cooperate and that by its very nature a search constituted interference with its right to inviolability of its private address (“home”). In the instant case the search had been disproportionate because it had had to be justified by aims other than ascertaining the identity of the author of the article, who had been readily identifiable. Even if such identification really had been the aim of the search, the latter had been disproportionate because the courts had had other means of obtaining this information, such as writing to the editor-in-chief for confirmation of the journalist’s authorship. 37. The Court reiterates, first of all, that the the notion of “home” in Article 8 § 1 does not only encompass a private individual’s home. The word “ domicile ” in the French version of Article 8 has a broader connotation than “home” and may, for example, also refer to a professional person’s office. Consequently, “home” is to be construed as including also the registered office of a company run by a private individual and a legal entity’s registered office, branches or other business premises (see Buck v. Germany, no. 41604/98, § 31, ECHR 2005-I; see also Société Colas Est and Others v. France, no. 37971/97, § 41, ECHR 2002-III, and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 43), as in the case of the applicant company. 38. The fact that the journalist and other employees of the applicant company cooperated with the police cannot be construed as making the search and the associated seizure less intrusive. The Court has already had occasion to find that cooperation under threat of a search cannot cancel out the interfering nature of such an act (see, mutatis mutandis, Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, §§ 68 to 70, 14 September 2010). Nor has it been alleged in the present case that failure to cooperate would have prevented the police officers from executing the legal warrant entrusted to them. On the contrary, the police officers had made clear that they could carry out the measure by force in the event of a refusal to cooperate (see paragraph 14 above). 39. The Court therefore considers that the search and the seizure carried out in the applicant company’s registered office must be construed as “interference” in the exercise of the applicant company’s rights under Article 8 § 1 of the Convention (see, mutatis mutandis, Roemen and Schmit v. Luxembourg, no. 51772/99, § 65, ECHR 2003 ‑ IV). 40. Such interference will infringe Article 8 unless it satisfies the requirements of Article 8 § 2, that is to say, if it is in accordance with the law, pursues one of the aims set out in that paragraph and is necessary in a democratic society. 41. In the light of Articles 51, 65, 66 and 31 of the Code of Criminal Procedure, the Court agrees with the parties that the interference was “in accordance with the law”. 42. The Court further considers that the interference, which was geared to ascertaining the real identity of a person under prosecution in the framework of a judicial investigation and elucidating the circumstances surrounding the possible commission of an offence, pursued a “legitimate aim”, namely the prevention of disorder and crime. Moreover, the impugned article implicated a social worker, giving his name, as well as the names of the minors in question, on whom it provided fairly extensive details. From this angle, the interference also pursued a further legitimate aim, that is to say protecting the rights of others. 43. As to whether the interference was “necessary”, the Court reiterates that “the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly and the need for them in a given case must be convincingly established” (see Crémieux v. France, 25 February 1993, § 38, Series A no. 256-B). 44. The Court notes that in the instant case the journalist had signed his article “Domingos Martins”. Even though the list of officially recognised journalists in Luxembourg includes no such name, it does contain the name of “De Araujo Martins Domingos Alberto”, which comprises all the elements of the name under which the article in issue was published. Furthermore, no other name comprising these elements appears in the list. The list also points out that “De Araujo Martins Domingos Alberto” works for the newspaper Contacto. Therefore, the similarity in the names, the exclusiveness of the elements of the names and the connection with the newspaper in question forge an obvious link between the author of the impugned article and the person appearing on the list. Drawing on these elements, the investigating judge could have begun by ordering a less intrusive measure than a search in order to confirm the identity of the author of the article, if he had continued to deem such action necessary. Consequently, the search and seizure were unnecessary at that stage. 45. The measures complained of were therefore not reasonably proportionate to the pursuit of the legitimate aims in question. 46. There has therefore been a violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 47. The applicant company complained of a violation of its freedom of expression. The impugned measure was, in its view, objectionable in that it was geared to seeking out the journalist’s sources and had an intimidatory effect. It relied on Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 48. The Government challenged this argument on essentially the same grounds as for the complaint under Article 8. They also submitted that the search had in no way been geared to seeking out the journalist’s sources, as these had already been ascertained. 49. The Court reiterates that protecting journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected (see, among many other authorities, Martin and Others v. France, no. 30002/08, § 59, 12 April 2012; Roemen and Schmit, cited above, § 46; Tillack v. Belgium, no. 20477/05, § 53, 27 November 2007; Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001-III; Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 93, ECHR 2004 ‑ XI; and Sanoma Uitgevers B.V. v. Netherlands, cited above, § 50). 50. The Court’s understanding of the concept of journalistic “source” is “any person who provides information to a journalist”; it understands “information identifying a source” to include, in so far as they are likely to lead to the identification of a source, both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” (see Telegraaf Media Nederland Landelijke Media B.V. and Others v. Netherlands, no. 39315/06, § 86, 22 November 2012). 51. The Court has previously held that searches of journalists’ homes and workplaces for the purpose of identifying civil servants who had provided the journalists with confidential information constituted interference with their rights under Article 10 § 1 (see Martin and Others v. France, no. 30002/08, § 70, 12 April 2012; Roemen et Schmit, cited above, § 47; Ernst and Others v. Belgium, no. 33400/96, § 94, 15 July 2003; Tillack, cited above, § 56; and Sanoma Uitgevers B.V., cited above, § 61). 52. In Roemen and Schmit (cited above, § 47), the execution of the search and seizure warrant on the premises used by the journalists concerned had failed to secure the desired information. The Court therefore considered (§ 57) that this warrant was a more drastic measure than an order to divulge the source’s identity, because investigators who raid a journalist’s workplace unannounced and armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist. 53. In the present case, the Government denied that the aim of the search and seizure in issue had been to ascertain the journalist’s sources. 54. The Court notes that the case file does not indicate that any sources were found other than those already published in the article. Nevertheless, in the light of the Court’s understanding of information likely to identify a source, and in view of the extent of the power bestowed by the search on the authorities searching the registered office of the applicant company, the Court considers that in the present case the police officers were capable, thanks to the warrant in issue, of accessing information which the journalist did not wish to publish and which was liable to disclose the identities of other sources. 55. This is sufficient for the Court to conclude that in this case there was “interference” with the applicant company’s freedom to receive and impart information within the meaning of Article 10 § 1 of the Convention. 56. The question therefore arises whether such interference can be justified under Article 10 § 2. The Court must accordingly consider whether the interference was “in accordance with the law”, pursued a “legitimate aim” under this paragraph and was “necessary in a democratic society”. 57. Having regard to its conclusion under Article 8 (see paragraphs 41 and 42 above), the Court considers that the interference was in accordance with the law and pursued a legitimate aim. 58. As to the necessity of such interference in a democratic society, the Court reiterates that limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court (see Roemen and Schmit, cited above, § 46). 59. The Court notes that in the present case the impugned warrant was aimed at searching and seizing “any documents and items, in whatever form and on whatever medium, connected with the offences charged ...”. 60. The Court notes the relatively broad wording of this assignment. The search warrant conferred fairly extensive powers on the investigators (compare in this connection Roemen and Schmit, cited above, § 70). From this angle, the Court notes that the police officers, who were alone in carrying out the search, without any safeguards, were responsible for assessing the need to seize any given items. 61. Even though the Court cannot deduce from the evidence provided by the parties whether the purpose of the search was to disclose the journalist’s sources, the wording of the warrant is clearly too broad to rule out that possibility. The Court cannot accept the Government’s explanation that the sources were already mentioned in the impugned article. The fact of some sources having been published did not rule out the discovery of other potential sources during the search. The Court considers that the impugned search and seizure were disproportionate inasmuch as they enabled the police officers to search for the journalist’s sources. The Court notes that the insertion of a USB memory stick into a computer is a procedure which can facilitate the retrieval of data from the computer’s memory, thus supplying the authorities with information unrelated to the offence in question. The warrant of 30 March 2009 was not sufficiently narrow in scope to prevent possible abuse. In view of the Government’s contention before the Court that the sole aim of the search was to ascertain the real identity of the journalist who had written the article, a more succinct wording only mentioning this aim would have been sufficient. 62. In view of the foregoing, the Court finds that, in the particular circumstances of the case, the search and seizure carried out at the registered office of the applicant company were disproportionate to the aim pursued. 63. There has therefore been a violation of Article 10 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 65. The applicant company did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award it any sum on that account. A. Costs and expenses 66. On the other hand, the applicant company claimed EUR 8,210 for the costs and expenses incurred before the domestic courts and EUR 5,635 for those incurred before the Court. 67. The Government left the assessment of these claims to the Court’s discretion. 68. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court notes that the bills produced include costs other than those related to the application to have the warrant in issue declared void. Although the applicant company is only claiming partial reimbursement, it has failed to provide documentary evidence of the amount claimed. The Court therefore decides to make no award to the applicant company in respect of this part of its claim. As to the costs and expenses for the proceedings before the Court, based on a separate bill, the Court considers that they should be charged in their entirety to the respondent State. Accordingly, having regard to the documents in its possession and its case-law, the Court considers it reasonable to award the sum of EUR 5,635 for the proceedings before the Court and awards that sum to the applicant company. B. Default interest 69. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court found a violation of Article 8 (right to respect for private life) and a violation of Article 10 of the Convention. It held in particular that the search and seizure warrant had not been reasonably proportionate to the aim pursued, namely to verify the identity of the journalist who had written the article, and that it had been insufficiently limited in scope to prevent possible abuse by the investigating officers, for instance in the form of attempts to identify the journalist’s sources. |
89 | Taking of children into care | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Local authority’s duties in respect of child care 38. Prior to the coming into force of the current legislation, the Children Act 1989, on 14 October 1991, the local authority’s duty in respect of child care was governed by the Child Care Act 1980. Sections 1 and 2 of the Child Care Act 1980 provided that: “1. It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care. 2(1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen- (a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost; (b) that his parents or guardian are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and (c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section.” B. Place of safety orders 39. Under section 28(1) of the Children and Young Persons’ Act 1969 any person, including a local authority could apply to a magistrate for the authority to detain a child and take him/her to a place of safety. There was power to grant the application if the magistrate was satisfied that the applicant had reasonable cause to believe inter alia that the child’s proper development was being avoidably prevented or neglected or that he/she was being ill-treated or exposed to moral danger. The order could last a maximum of 28 days, with no possibility of extension. Before the expiry of the order, it was necessary for the local authority to institute care proceedings under section 1 of the 1969 Act or to make the child a ward of court if it wished either to intervene in the exercise of parental control. 40. The place of safety order was replaced with the emergency protection order under section 44 of the Children Act 1989, which came into force on 14 October 1991. This provided for removal of a child on emergency grounds for a maximum period of 72 hours. C. Complaints procedures concerning local authorities 41. Section 76 of the Child Care Act 1980 permitted the Secretary of State to cause an inquiry to be held into any matter relating, inter alia : “the functions of the social services committee of a local authority, in so far as those functions relate to children.” 42. Pursuant to Part III of the Local Government Act 1974, as amended, the Local Commissioner for Administration (the Local Government Ombudsman) had the function, inter alia, of investigating written complaints by persons who claim to have sustained injustice “in consequence of maladministration in connection with ... action taken in exercise of administrative functions of local authorities”. On conclusion of an investigation, Local Government Ombudsmen could recommend an appropriate remedy, including the payment of compensation, where maladministration was found. D. Wardship 43. The power of the High Court to make a child a ward of court derives from its inherent jurisdiction. The effect is that the court assumes responsibility for the child and may make orders concerning any aspect of the child’s life. The child’s welfare must be the first consideration of the court. 44. As soon as the originating summons was issued, the custody of the child vested in the court. From that moment, the parties to the proceedings, including the local authority, only had such power and authority over the child as was conferred by the court. E. Actions against the local authority for damages 45. In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence, defamation etc. 46. Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing: – that damage to the claimant was foreseeable; – that the claimant was in an appropriate relationship of proximity to the defendant; – that it is fair, just and reasonable to impose liability on the defendant. These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605). 47. If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship. 48. The decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353) is the leading authority in the United Kingdom in this area. It held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The leading judgment is reported at length in the facts above (see paragraphs 45-46). 49. Since the X. and Others case, there has been two further significant judgments regarding the extent of liability of local authorities in child care matters. 50. The Court of Appeal gave judgment in the W and Others v. Essex County Council ([1998] 3 All ER 111, judgment of 2 April 1998). This case concerned the claims by a mother and father (first and second plaintiffs), who had agreed to act as foster parents, that the defendant local authority placed G, a 15 year old boy, in their home although they knew that he was a suspect or known sexual abuser. During G’s stay in their home, the plaintiffs’ three children (fourth to sixth plaintiffs) were all sexually abused and suffered psychiatric illness. The plaintiffs brought an action against the local authority and the social worker involved, claiming damages for negligence and for negligent misstatement. On the defendants’ application to strike out the statement of claim as disclosing no reasonable cause of action, the judges struck out the parents’ claims but refused to strike out the claims of the children. The Court of Appeal upheld his decision. The headnote for the judgment summarised the Court of Appeal’s findings as follows: “(1) ... In the instant case, the giving of information to the parents was part and parcel of the defendants’ performance of their statutory powers and duties, and it had been conceded that it was arguable that those decisions fell outside the ambit of their discretion. Accordingly, since it had also been conceded that the damage to the children was reasonably foreseeable and that there was sufficient proximity, the question for the court was whether it was just and reasonable to impose a duty of care on the council or the social worker. Having regard to the fact that the common law duty of care would cut across the whole statutory set up for the protection of children at risk, that the task of the local authority and its servants in dealing with such children was extraordinarily difficult and delicate, that local authorities might adopt a more defensive approach to their duties if liability in damages were imposed, that the relationship between parents and social workers was frequently one of conflict and that the plaintiff children’s injuries were compensatable under the Criminal Injuries Compensation Scheme, it was not just and reasonable to do so. It followed that no duty of care was owed to the plaintiff parents ... (2) (Stuart-Smith LJ dissenting) It was arguable that the policy considerations against imposing a common law duty of care on a local authority in relation to the performance of its statutory duties to protect children did not apply when the children whose safety was under consideration were those in respect of whom it was not performing any statutory duty. Accordingly, since in the instant case, the plaintiff children were not children for whom the council had carried out any immediate caring responsibilities under the child welfare system but were living at home with their parents, and express assurances had been given that a sexual abuser would not be placed in their home, their claim should proceed ...” 51. On further appeal by the parents, the House of Lords on 16 March 2000 held that it was impossible to say that the psychiatric injury allegedly suffered by the parents, flowing from a feeling that they had brought the abuser and their children together or from a feeling of responsibility for not having detected the abuse earlier, was outside the range of psychiatric injury recognised by the law, nor was it unarguable that the local authority had owed a duty of care to the parents. The parents’ claim could not be said to be so certainly or clearly bad that they should be barred from pursuing it to trial and their appeal was allowed. 52. The House of Lords gave judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held that the case of X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care. 53. Lord Browne-Wilkinson, in his judgment in that case, commented as follows on the operation of the duty of care: “(1) Although the word ‘immunity’ is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. (2) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. (3) In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.” F. Striking out procedure 54. At the relevant time, Order 18 rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. This jurisdiction has been described as being reserved for “plain and obvious cases”, in which a claim was “obviously unsustainable”. 55. In applications to strike out, the courts proceeded on the basis that all the allegations set out in the claimant’s pleadings were true. The question for the courts was whether, even assuming that the claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action. 56. The striking out procedure, now contained in the Part 3.4(2) of the Civil Procedure Rules in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia by allowing it to be decided promptly which issued need full investigation and trial and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 57. The applicants complained that K.M. had been unjustifiably removed from her mother, T.P.’s care in violation of their right to respect for family life. Article 8 as relevant provides: “1. Everyone has the right to respect for his ... family life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 58. The Government disputed that there had been any failure to comply with the requirements of Article 8 of the Convention, while the Commission found by 17 votes to 2 that there had been a violation of Article 8 in that the first applicant was not provided with a proper, fair or adequate opportunity to participate in the decision-making procedures following the removal of the second applicant as an emergency measure. A. The parties’ submissions 59. The applicants submitted that the removal of the second applicant was not necessary or supported by relevant and sufficient reasons and that the procedures for removing the child completely disregarded requirements in Article 8 that there must be inherent procedural safeguards. They considered that the removal was not in accordance with law as the decision of the court was based on the local authority’s wrongful assertions that the factual basis existed justifying an emergency order. Since the abuser was not living in the house, there was no immediate emergency and the matter should properly have been dealt with at a hearing on notice, at which the first applicant could appear and be represented. They submitted that the ex parte place of safety order procedure was abused in practice, being imposed for too long a period, without the grounds being sufficiently focussed on emergencies. 60. The applicants submitted that the authorities’ reaction to the disclosure interview was also incompatible with the requirements of Article 8. Dr V. and Dr P. should have picked up the second applicant’s references to X as not necessarily referring to the first applicant’s boyfriend and taken further investigative steps to establish who X was. It was indicated in the interview that the abuse had stopped and the abuser thrown out of the house. The first applicant’s reaction of shock and anger to the interpretation placed on the interview that her boyfriend was the abuser was natural in the circumstances. The removal of the second applicant was a manifest error which should not have occurred. 61. The applicants argued that the authorities failed to pay proper attention to what the child told them and failed, for almost a year, to give the first applicant the opportunity to view the evidence on which they based their conclusions. They adopted the Commission’s views that it was vital for parents to be fully informed about serious allegations relating to the abuse of their children and that the authorities should have made the video material available to the first applicant as soon as practically possible. 62. The Government submitted that the removal of the second applicant was in accordance with law and pursued the legitimate aim of protecting her welfare, as it was implemented to protect her from the risk of sexual abuse the occurrence of which evidence strongly supported. The emergency nature of the measure had been justified by the clear and strong indications of abuse given by the second applicant and the legitimate concern by the local authority as to whether the first applicant was able to protect her from further abuse. 63. The Government denied that the first applicant was not provided with a proper, fair or adequate opportunity to participate in the decision-making procedures following the removal of the second applicant, as found by the Commission. Though the place of safety order was made ex parte, it was for a maximum of one month and the applicant could apply to the court at any time to have the order revoked. She was also able, as she did, to invoke the wardship jurisdiction of the High Court. The first applicant could have applied to that court for, inter alia, care and control of the second applicant to be returned to her or for the second applicant to reside with her. They submitted that it was open to the first applicant to put such evidence as she considered appropriate before the court with a view to supporting these applications. 64. The Government pointed out that the first applicant could have applied to the court for disclosure of the video. She was represented by lawyers throughout and she had not provided any explanation for why this step was not taken. Securing the video was the obvious starting point for any challenge to the justification for the separation of mother and child. They emphasised that all involved in the case were convinced that the second applicant had been a victim of sexual abuse and was in need of protection which her mother could not provide. In that context the identity of the abuser was a secondary issue. Furthermore, when the mistake concerning the identification of the abuser came to light, the subsequent steps taken were speedy, adequate and not disputed by the first applicant. B. The Court’s assessment 65. The Court notes that it is not disputed that the measures by which the second applicant was removed into care by the local authority until she was returned home a year later disclosed an interference with the applicants’ right to respect for their family life under Article 8 § 1 of the Convention. It has therefore examined whether this interference complied with the requirements of the second paragraph of Article 8, namely, whether it was “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”. 1. “In accordance with the law” 66. The applicants disputed that the removal of the second applicant was lawful as it was based on a wrongful assessment of the need for an emergency measure derived from the mistaken interpretation by Dr V. and Mr P. of the second applicant’s disclosures as to the identity of the abuser. 67. The Court recalls that the place of safety order was issued by the court under section 28 of the Children and Young Persons Act 1969. The local authority had applied to the court, stating that the second applicant had been abused, had identified XY as the abuser and there was a risk of further direct abuse or that the first applicant would pressure the second applicant into retracting her allegation (see paragraph 17 above). The court had jurisdiction to issue the order where the party applying to the court had reasonable cause to believe inter alia that the child’s proper development was being avoidably prevented or neglected or that he/she was being ill-treated (see paragraph 39 above). Since it is accepted that there was strong evidence that the second applicant had been abused, the Court is not persuaded that the factual error made by the local authority as to the identity of the abuser is such as to deprive the exercise of the court’s power to issue the order of its basis in domestic law. 68. The removal, and the continuance of the care measure under the wardship jurisdiction of the High Court, were consequently “in accordance with the law”. 2. Legitimate aim 69. In the Court’s view, the removal and subsequent measures were clearly aimed at protecting the “health or morals” and the “rights and freedoms” of the child. Accordingly they pursued legitimate aims within the meaning of paragraph 2 of Article 8. 3. “Necessary in a democratic society” (a) General principles 70. In determining whether the impugned measures were “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55, and, mutatis mutandis, the Bronda v. Italy judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1491, § 59). 71. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see, amongst other authorities, the Johansen v. Norway judgment of 7 August 1996, Reports 1996-III, p. 1003, § 64). 72. The Court further recalls that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8: “[W]hat has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of Article 8.” (see the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, pp. 28-29, §§ 62 and 64). 73. It has previously found that the failure to disclose relevant documents to parents during the procedures instituted by the authorities in placing and maintaining a child in care meant that the decision-making process determining the custody and access arrangements did not afford the requisite protection of the parents’ interests as safeguarded by Article 8 (see the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 57, § 92). (b) Application in the present case 74. As concerns the measure taken to remove the second applicant into care, the Court considers that this was supported by relevant and sufficient reasons, namely, the strong suspicions that she had been abused and the doubts which existed as to the first applicant’s ability to protect her (see paragraphs 10 to 16 above). In that latter context, it may be noted that the abuse had taken place in the first applicant’s home without her apparently being aware and that the first applicant’s reaction, however natural in the circumstances, tended towards a denial of the allegations. It also appears from the interview that while at one point the second applicant had described the abuser as having been thrown out of the house, at another point she referred to X as coming to the house the next day (see paragraph 14 above). 75. The Court is not persuaded however that the mistake made by Dr V. and Mr P. in assuming that the second applicant was referring to the first applicant’s boyfriend XY was of such a nature as to deprive the decision to remove the second applicant into care of a legitimate basis. The second applicant was less than five years old at the time of the interview and the process of questioning her was a sensitive and delicate one, as was interpreting the sense of her responses, verbally and with regard to her body language. The second applicant frequently did not speak in grammatical sentences and appeared to contradict herself on several occasions. The fact that the second applicant shook her head would not necessarily indicate an unequivocal denial of the question put. Dr B., the consultant psychiatrist instructed by the first applicant, commented positively on the way in which Dr V. handled the interview and agreed with her conclusions as to the existence of the abuse and the identity of the abuser (see paragraph 23 above). 76. The Court finds therefore that the use of the emergency procedure to take the second applicant into care may be regarded as a proportionate measure and “necessary in a democratic society” for protecting the second applicant’s health and rights. 77. The second applicant remained in care until 21 November 1988, when the High Court ordered that she be returned home. That decision was taken shortly after the transcript of the video was disclosed to the applicant’s solicitor. At that stage it became apparent that the local authority had mistakenly identified the abuser X as XY. In recommending that the second applicant returned home, the local authority also referred to the evidence that in the intervening period the first applicant had matured and shown herself more capable of providing a stable and secure environment for the second applicant. The second applicant was then returned to the first applicant’s care for a trial period subject to supervision and review in case of renewed problems. It was one year before the High Court ended its supervisory wardship role (see paragraphs 27 to 29 above). 78. The Court reiterates that the seriousness of measures which separate parent and child requires that they should not last any longer than necessary for the pursuit of the child’s rights and that the State should take measures to rehabilitate the child and parent, where possible (see the Hokkanen v. Finland judgment, cited above, p. 20, § 55 and the authorities cited there). During the separation, access between the applicants was severely restricted and there was no contact with the second applicant’s wider family. Her grandmother died during this period. Notwithstanding therefore that the initial measure was justified, the Court has examined whether the procedures which followed were compatible with the requirements of Article 8 in ensuring that they protected the interests of the first applicant and second applicant in this respect. 79. The Court notes that the Commission criticised the place of safety order as imposing a measure lasting 28 days. This was however the maximum length of time possible and a parent was able to apply to the court within that period to have the measure lifted. In the present case, the first applicant brought the matter before the High Court within eleven days. The Court does not find therefore that the place of safety order by itself disclosed any disproportionate obstacle to the first applicant’s ability to challenge the removal of her daughter into care. 80. The Court does however consider that it is essential that a parent be placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care. A parent may claim an interest in being informed of the nature and extent of the allegations of abuse made by his or her child. This is relevant not only to the parent’s ability to put forward those matters militating in favour of his or her capability in providing the child with proper care and protection but also to enable the parent to understand and come to terms with traumatic events effecting the family as a whole. There may be instances where disclosure of a child’s statements may place that child at risk. There can be no absolute right by a parent to view, for example, the videos of interviews conducted by medical professionals. 81. Nonetheless, the potential importance of the contents of such interviews renders it necessary for careful consideration to be given to whether they should be disclosed to the parents. In this case the revelations of abuse by the second applicant as recorded on the video and transcript were relied on by the local authority in obtaining the emergency measure of a place of safety order and in justifying the continuation of care measures before the High Court. The local authority, which is charged with the duty of protecting the child and is a party in the court proceedings, may reasonably not be regarded by a parent as being able to approach the issue with objectivity. The question whether crucial material should be disclosed should therefore not be decided by the local authority, or the health authority responsible for the medical professional who conducted the interview. 82. The Government have submitted that there was nothing to stop the first applicant from applying to the High Court for disclosure of the interview at any point. The applicant responded that she had no reason to suspect that the interview disclosed an error of identification by the professionals or that it would make a difference to her position. The Court considers that the power of the High Court in its wardship jurisdiction to take decisions concerning the welfare of the child in local authority care is an important safeguard of the interests of parent and child. However, this is not an instance where it should be the sole responsibility of the parent, or lie at his or her initiative, to obtain the evidence on which a decision to remove their child is based. The positive obligation on the Contracting State to protect the interests of the family requires that this material be made available to the parent concerned, even in the absence of any request by the parent. If there were doubts as to whether this posed a risk to the welfare of the child, the matter should have been submitted to the court by the local authority at the earliest stage in the proceedings possible for it to resolve the issues involved. 83. The Court concludes that the question whether to disclose the video of the interview and its transcript should have been determined promptly to allow the first applicant an effective opportunity to deal with the allegations that her daughter could not be returned safely to her care. The local authority’s failure to submit the issue to the court for determination deprived her of an adequate involvement in the decision-making process concerning the care of her daughter and thereby of the requisite protection of their interests. There was in this respect a failure to respect their family life and a breach of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 oF THE CONVENTION 84. The applicants complained that they had been denied access to court in determination of their claims of negligence against the local authority, invoking Article 6 which provides as relevant in its first paragraph: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” 85. The Government denied that there was any civil right in issue in the case or any restriction on access. The Commission found by 10 votes to 9 that there had been a violation of Article 6 in respect of the second applicant on the basis that the House of Lords had applied an exclusionary rule concerning the liability of local authorities in child care matters which constituted in the circumstances a disproportionate restriction on her access to court. It found by 18 votes to 1 that there had been no breach of Article 6 in respect of the first applicant, whose claims were found to have been dismissed without recourse to any exclusionary rule. A. The parties’ submissions 1. The applicants 86. The applicants submitted that their negligence claim was plainly arguable as a matter of domestic law, relying inter alia on the Osman case (Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998-VIII). Negligence was a tort of general application and there was no prior authority excluding the courts’ jurisdiction to hold a local authority liable in the performance of its statutory powers to remove children into care. There was a strong argument that public policy considerations required that a duty of care be imposed and there was no prior decision excluding liability. The applicants also pointed to the fact that the Legal Aid Board granted legal aid to pursue the claims to the House of Lords; that the Court of Appeal granted leave to appeal to the House of Lords, the precondition for such leave being that the claim was arguable in domestic law; that the Master of the Rolls, in the Court of Appeal, found that a duty of care could arguably arise; and that in previous cases, local authorities had paid settlements in negligence cases, on the basis that they were potentially liable. There was a serious dispute in domestic law therefore as to the existence of any exclusionary principle, which has continued since and Article 6 was applicable. They denied that their claims had been restricted to asserting that the local authority and health authority were vicariously liable for the negligence of their employees, Mr P. and Dr V., referring to their written pleadings as covering wider grounds of liability. 87. In the applicants’ view therefore, the exclusionary rule applied by the House of Lords permitted the applicants’ claims to be struck out without determining the facts and without a trial. This applied regardless of the merits or the seriousness of the harm suffered. Designed to protect local authorities’ from wasting resources on having to defend an action at all, this amounted in practical effect to immunity and acted as a restriction on access to court. 88. The application of a blanket rule which excluded the determination of the applicants’ claims irrespective of the seriousness of the harm suffered, the nature and extent of negligence involved, or the fundamental rights which were at stake, constituted a disproportionate restriction on their right of access to court. They emphasised the severity of the damage suffered by them against which the public policy arguments against imposition of liability had little weight, namely, the alleged risk of frivolous litigation, the increased cautiousness of social services in fulfilling their functions or the difficulty or the sensitivity of the issues. They referred to the Court’s finding in the Osman case, that the domestic courts should be able to distinguish between degrees of negligence or harm and give consideration to the justice of a particular case (cited above, § 151). An exclusionary rule on that basis should be capable of yielding to competing human rights considerations on the facts of a particular case. 2. The Government 89. The Government submitted that Article 6 guaranteed a fair trial in the determination only of such civil rights and obligations as are (at least arguably) recognised at national law. It does not bear on the substantive question of whether a right to compensatory damages exists in any given situation. The proceedings brought by the applicants established that no right existed. The decision to strike out their claim was a decision as to the scope of the domestic law. By ruling that a right of action did not exist in a particular set of circumstances, the courts were applying substantive limits to tort liability, as the legislature might do in statute (see, for example, the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 16, § 36). There was no established cause of action which was restricted. Accordingly, Article 6 § 1 was not applicable. 90. The Government argued in the alternative that there was no immunity applied which could be regarded as a restriction on access to court. The applicants’ claims, relying on the alleged vicarious liability of the local authority, had been dismissed on grounds of lack of proximity. There could in their view be no doubt that the dispute was subject to a fair and public hearing in compliance with the guarantees of Article 6. The striking out procedure was an important way of securing the speedy and cost-effective determination of cases that were hopeless in law. It achieved those aims without inhibiting claimants’ rights to present any arguments to a court in their favour. Thus, as factual matters were assumed to be those pleaded, the claimants were not prejudiced by the lack of hearing of evidence, while they could put forward any arguments in their favour to persuade the court that their claim was sustainable as a matter of law. 91. Assuming that their arguments on the above failed, the Government argued that any restriction on access to court was nonetheless in pursuit of a legitimate aim and proportionate. It aimed to preserve the efficiency of a vital sector of public service. The exclusion of liability was strictly limited in scope to the category of cases to which it applied, actions for misfeasance, vicarious liability for employees remaining unaffected. The domestic courts had themselves weighed up the public policy issues for and against liability in light of the principles of English tort law and the social and political philosophy underlying those principles. A very substantial margin of appreciation would therefore be appropriate in any international adjudication. B. The Court’s assessment 1. Applicability of Article 6 of the Convention 92. The Court recalls its constant case-law to the effect that “Article 6 § 1 extends only to contestations (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 46, § 81; the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 70, § 192; the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301, p. 37, § 80). It will however apply to disputes of a “genuine and serious nature” concerning the actual existence of the right as well as to the scope or manner in which it is exercised (Benthem v. the Netherlands judgment of 23 October 1985, Series A no. 97, p. 15, § 32). 93. In the present case, the applicants were claiming damages on the basis of alleged breach of statutory duty and negligence, a tort in English law which is largely developed through the case-law of the domestic courts. 94. The Court is satisfied that at the outset of the proceedings there was a serious and genuine dispute about the existence of the right asserted by the applicants under the domestic law of negligence, as shown inter alia by the grant of legal aid to the applicants and the decision of the Court of Appeal that their claims merited leave to appeal to the House of Lords. The Government’s submission that there was no arguable (civil) ‘right’ for the purposes of Article 6 once the House of Lords had ruled that no duty of care arose has relevance rather to any claims which were lodged or pursued subsequently by other plaintiffs. The House of Lords’ decision did not remove, retrospectively, the arguability of the applicants’ claims (see the Le Calvez v. France judgment of 25 July 1998, Reports 1998-V, § 56). In such circumstances, the Court finds that the applicants had, on at least arguable grounds, a claim under domestic law. 95. Article 6 was therefore applicable to the proceedings brought by these applicants alleging negligence by the local authority. The Court must therefore examine whether the requirements of Article 6 were complied with in those proceedings. 2. Compliance with Article 6 of the Convention 96. The Court, in the Golder case, held that the procedural guarantees laid down in Article 6 concerning fairness, publicity and expeditiousness, would be meaningless if there was not protection of the pre-condition for enjoyment of those guarantees, namely, access to court. It established this as an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlie much of the Convention (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36). 97. Article 6 § 1 “may ... be relied on by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1” (see the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, § 44). Where there is a serious and genuine dispute as to the lawfulness of such an interference, going either to the very existence or the scope of the asserted civil right, Article 6 § 1 entitles the individual “to have this question of domestic law determined by a tribunal” (see the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, § 81; see also the Tre Traktörer AB v. Sweden judgment of 7 July 1989, Series A no. 159, § 40). 98. The right is not however absolute. It may be subject to legitimate restrictions, for example, statutory time-limits or prescription periods, security for costs orders, regulations concerning minors and persons of unsound mind (see, the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, pp. 1502-3, §§ 51-52; the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, pp. 80-81, §§ 62-67; the Golder judgment, cited above, p. 19, § 39). Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and in particular whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57). If the restriction is compatible with these principles, no violation of Article 6 will arise. 99. It is claimed by the applicants in this case that the decision of the House of Lords, finding that the local authority owed no duty of care, deprived them of access to court as it was effectively an exclusionary rule, or immunity from liability, which prevented their claims being decided on the facts. 100. The Court observes, firstly, that the applicants were not prevented in any practical manner from bringing their claims before the domestic courts. Indeed, the case was litigated with vigour up to the House of Lords, the applicants being provided with legal aid for that purpose. Nor is it the case that any procedural rules or limitation periods were invoked. The domestic courts were concerned with the application brought by the defendants to have the case struck out as disclosing no reasonable cause of action. This involved the pre-trial determination of whether, assuming the facts of the applicants’ case as pleaded were true, there was a sustainable claim in law. The arguments before the courts were therefore concentrated on the legal issues. 101. Nor is the Court persuaded that the applicants’ claims were rejected due to the application of an exclusionary rule. The decision of the House of Lords found, applying ordinary principles of negligence law, that the local authority could not be held vicariously liable for any alleged negligence of the doctor and social worker. Lord Browne-Wilkinson noted that the applicants had not argued any direct duty of care was owed to them by the local authority (see paragraph 36 above). It cannot therefore be maintained that the applicants’ claims were rejected on the basis that it was not fair, just and reasonable to impose a duty of care on the local authority in the exercise of its child care functions. The applicants have submitted that this ground was included in their original statement of claim and in the written pleadings on appeal. Since however this ground was not in fact relied upon in the proceedings conducted before the House of Lords, the Court cannot speculate as to the basis on which the claims might have been rejected if they had been so formulated and argued. 102. The decision of the House of Lords did end the case, without the factual matters being determined on the evidence. However, if as a matter of law, there was no basis for the claim, the hearing of evidence would have been an expensive and time-consuming process which would not have provided the applicants with any remedy at its conclusion. There is no reason to consider the striking out procedure which rules on the existence of sustainable causes of action as per se offending the principle of access to court. In such a procedure, the plaintiff is generally able to submit to the court the arguments supporting his or her claims on the law and the court will rule on those issues at the conclusion of an adversarial procedure (see paragraphs 54 to 56 above). 103. The applicants may not claim therefore that they were deprived of any right to a determination on the merits of their negligence claims. Their claims were properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence. Once the House of Lords had ruled on the arguable legal issues that brought into play the applicability of Article 6 § 1 of the Convention (see paragraphs 92 to 95 above), the applicants could no longer claim any entitlement under Article 6 § 1 to obtain any hearing concerning the facts. There was no denial of access to court and, accordingly, no violation of Article 6 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 oF THE CONVENTION 104. The applicants complained that they had not been afforded any remedy for the damage which they had suffered as a result of the interference by the local authority in their family life, invoking Article 13 of the Convention which provides: “Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 105. The applicants submitted that the rejection of their claims by the House of Lords deprived them of any effective remedy within the national legal system for the violation of Article 8 which they suffered. While the remedy required by Article 13 need not always be judicial in character, in their case a judicial determination was required. This was because the tort of negligence was the only remedy in national law capable of determining the substance of their complaint and which (but for the alleged immunity) would closely match the requirements of the Convention. Also the accountability of public officials, central to both Articles 8 and 13, required a right of access to court whereby the individual could hold the responsible officials to account in adversarial proceedings and obtain an enforceable order for compensation if the claim was substantiated. The wording of Article 13 also prohibited the creation of immunities for public officials and any such immunity must be regarded as contrary to the object and purpose of the Convention. 106. The Government which disputed that Article 8 had been violated submitted that there was no arguable claim of a violation for the purposes of engaging Article 13. If contrary to that submission there was an arguable breach, they submitted that Contracting States were afforded a measure of discretion as to the manner in which they conformed with their obligation to provide an effective remedy. They argued that the court in the wardship proceedings was amply equipped to deal with the substance of the Article 8 complaint which was the separation of the first and second applicants, and did in fact deal with the matter without delay when brought to its attention. In their view, this was not a case where pecuniary compensation was a necessary remedy. The harm suffered by the separation of mother and child was by its nature likely to be irremediable in terms of damages. There were in any event a number of remedies available to the applicants which should be taken into account. The applicants had the possibility of complaining to the Local Government Ombudsman who had power to investigate alleged maladministration and recommend an appropriate remedy, including the payment of compensation. There was also a statutory complaints procedure under the section 76 of the Child Care Act 1980, by which the Secretary of State could hold an inquiry into a local authority’s exercise of its child care functions. 107. As the Court has stated on many occasions, Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Article 13 thus requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although the Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 also varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. (see, amongst other authorities, the Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, pp. 1985-86, § 103). The Court considers that, where an arguable breach of one or more of the rights under the Convention is in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. Furthermore, in appropriate cases, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress. 108. The applicants have argued that in their case an effective remedy could only be provided by adversarial court proceedings against the public body responsible for the breach with the possibility of obtaining damages. The Government have countered with the argument that the High Court was able to provide adequate redress for the essence of the applicants’ complaints by exercising its wardship jurisdiction to bring their separation to an end and that pecuniary compensation is not necessary. The Court recalls that it has found a breach of Article 8 in respect of the procedures following the taking into care of the second applicant. In particular, it found that the issue of disclosure of the video of the interview, and its transcript, should have been dealt with promptly to allow the first applicant the effective opportunity of meeting the allegations that her daughter could not be safely returned to her care. In these circumstances, the exercise of the court’s powers to return the child almost a year later was not an effective remedy. It did not provide redress for the psychological damage allegedly flowing from the separation over this period. 109. The Court considers that the applicants should have had available to them a means of claiming that the local authority’s handling of the procedures was responsible for the damage which they suffered and obtaining compensation for that damage. It does not agree with the Government that pecuniary compensation would not provide redress. If, as is alleged, psychiatric damage occurred, there may have been elements of medical costs as well as significant pain and suffering to be addressed. The Court does not consider it appropriate in this case to make any findings as to whether only court proceedings could have furnished effective redress, though judicial remedies indeed furnish strong guarantees of independence, access to the victim and family and enforceability of awards in compliance with the requirements of Article 13 (see, mutatis mutandis, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, § 67). The possibility of applying to the ombudsman and to the Secretary of State did not however provide the applicants with any enforceable right to compensation. 110. The Court finds that in this case the applicants did not have available to them an appropriate means for obtaining a determination of their allegations that the local authority breached their right to respect for family life and the possibility of obtaining an enforceable award of compensation for the damage suffered thereby. Consequently, they were not afforded an effective remedy and there has, accordingly, been a violation of Article 13 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 111. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damages 112. The applicants claimed a just and equitable sum in non-pecuniary loss to reflect the damage caused by the removal of the second applicant from the first applicant for a year. This had physical and psychiatric consequences, including the trauma of separation and the anxiety, insecurity and uncertainty suffered during the separation. On her return home, the second applicant experienced a transient emotional disturbance, consisting mainly of manifestations of anxiety through a range of symptomatic behaviours. In a report of 21 February 1991, Dr B commented that the second applicant had settled back into domestic routine and that though she was not manifesting any particular anxiety at that time, she might yet undergo delayed emotional reactions to this most disruptive period of her life both in relation to the abuse and the unnecessary enforced separation. As regarded the first applicant, he commented on the anxiety, depression and despair which she suffered due to events, involving inability to sleep, proneness to emotional breakdown, intense anxiety, guilt loss of appetite and weight loss. Though she had become more settled and confident after her daughter’s return, she still carried a very bitter anger towards the local authority and Dr V. 113. As they had been victims of an exceptionally serious breach of Article 8, spanning a year, the applicants submitted that a substantial award of compensation was appropriate. It should also reflect the domestic damage scales which would have been applicable to them if they had succeeded in their negligence claims, namely, for the first applicant a sum of 15,000 pounds sterling (GBP) to 30,000 and for the second applicant GBP 25,000 to 35,000. In addition they claimed a sum of GBP 10,000 each in respect of the delay in obtaining either access to court or an effective remedy for their grievances, plus interest on those sums from 1990. 114. The Government disputed that there was any clear case of negligence made out and considered that, as noted by the domestic courts, there was the gravest doubt that the second applicant’s claims against the Dr V could have been established on the facts. They maintained that separation had been, at least initially, justified by the abuse to which the second applicant had been victim. The psychiatric reports relied on by the applicants were over nine years old and there was no indication that physical or psychiatric treatment was required by either applicant. They disputed that national scales of assessment should be taken into account and in any event the applicants’ problems would have fallen into a category of minor seriousness. In their submission, a finding of a violation constituted in the circumstances of this case just satisfaction. 115. The Court recalls that the applicants were re-united after a year’s separation (see paragraph 29 above). Though it cannot be asserted that they would have been reunited earlier if the video had been available at the initial stage of the procedure, it cannot be excluded either that it might have reduced the duration of their separation. They thereby suffered a loss of opportunity. In addition, the applicants certainly suffered non-pecuniary damage through distress and anxiety and in the case of the first applicant through feelings of frustration and injustice. 116. The Court thus concludes that the applicants sustained some non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention (see, for example, Elsholz v. Germany [GC], no. 25735/94, §§ 70-71, ECHR 2000-VIII). 117. Making an assessment on an equitable basis, it awards the sum of GBP 10,000 each to the applicants. B. Costs and expenses 118. The applicants claimed a total of GBP 37,046.60, inclusive of value-added tax (VAT). This included GBP 12,398.55 for the applicants’ solicitors, GBP 16,520.55 for their counsel and GBP 8,127.50 for Ms Nuala Mole, of the AIRE Centre who assisted counsel. Claim was made for 68.7 hours work by the solicitors, 134 hours for counsel and 59 hours for Ms Mole, in addition to time spent travelling and attending the hearings on admissibility before the Commission and on the merits before the Court. 119. The Government disputed that three sets of lawyers should have been involved. While they accepted the hourly rates claimed, they considered the total number of hours claimed by these lawyers to be excessive, particularly since they relied heavily on the submissions made in the case of Z. and Others v. the United Kingdom (no. 29392/95) heard by the Court at the same time. In their view, a sum of GBP 20,000 would be reasonable for costs and expenses. 120. The Court recalls that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, 25.3.99, § 79). The Court observes that this case, and the case of Z. and Others v. the United Kingdom were heard together, both before the Commission and the Court. There was, as regarded the issues under Articles 6 and 13, a joint approach adopted and the observations were co-ordinated. It finds the sums claimed in those circumstances to be high and is not persuaded that they were necessarily incurred or are reasonable as to quantum. 121. In light of these matters, the Court awards the sum of GBP 25,000 for legal costs and expenses, inclusive of VAT. C. Default interest 122. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, the mother having been deprived of an adequate involvement in the decision-making process concerning the care of her daughter. It further held that there had been no violation of Article 6 (right to a fair trial) of the Convention, as the applicants had not been deprived of any right to a determination on the merits of their negligence claims against the local authority. Lastly, the Court held that there had been a violation of Article 13 (right to an effective remedy) of the Convention, as the applicants had had no appropriate means of obtaining a determination of their allegations that their right to respect for their family life had been breached, and no possibility of obtaining an enforceable award of compensation for the damage suffered as a result. |
254 | Article 3 (prohibition of torture and inhuman or degrading punishment or treatment) of the Convention | II. Relevant domestic law and practice A. Criminal-law provisions against torture 24. The Turkish Criminal Code makes it an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture, and Article 245 in respect of ill-treatment). 25. Article 8 of Decree no. 430 of 16 December 1990 provides as follows: "No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification." 26. Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made. However, in the state of emergency region, the investigation of criminal offences by members of the administration is taken up by local administrative councils, composed of civil servants. These councils are also empowered to decide whether or not to bring a prosecution, subject to an automatic judicial review before the Supreme Administrative Court in cases where they decide not to prosecute (Legislative Decree no. 285). B. Administrative law remedies 27. Article 125 of the Turkish Constitution provides as follows: "All acts or decisions of the administration are subject to judicial review ... The administration shall be liable to indemnify any damage caused by its own acts and measures." By virtue of this provision, the State is liable to indemnify any person who can prove that he has suffered damage in circumstances where the State has failed in its duty to safeguard individual life and property. C. Civil proceedings 28. Any illegal act which causes damage committed by a civil servant (except the regional or district prefects in the state of emergency region) may be the subject of a claim for compensation before the ordinary civil courts. D. The law relating to detention in police custody 29. Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence. The permissible periods of detention without judicial control are longer in relation to proceedings before the State security courts. In such a case, it is possible to detain a suspect for a period of forty-eight hours in connection with an individual offence, and fifteen days in connection with a collective offence (section 30 of Law no. 3842 of 1 December 1992, re-enacting Article 11 of Decree having the force of law no. 285 of 10 July 1987). In the region under emergency rule, however, a person arrested in connection with proceedings before the State security courts may be detained for four days in the case of individual offences and thirty days in the case of collective offences before being brought before a magistrate (ibid., re-enacting section 26 of Law no. 2935 of 25 October 1983). 30. Article 19 of the Turkish Constitution gives to a detained person the right to have the lawfulness of his detention reviewed, on application to the court with jurisdiction over his case. E. The Turkish derogation from Article 5 of the Convention (art. 5) 31. In a letter dated 6 August 1990, the Permanent Representative of Turkey to the Council of Europe informed the Secretary General of the Council of Europe that: "The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to amount to a threat to the life of the nation in the meaning of Article 15 of the Convention (art. 15). During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces. The threat to national security is predominantly occurring in provinces [i.e. Elazig, Bingöl, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkâri, Batman and Sirnak ] of South East Anatolia and partly also in adjacent provinces. Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights. To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10, 1990 the decrees with force of law nos. 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention for Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13 (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13). A descriptive summary of the new measures is attached hereto. The issue of their compatibility with the Turkish Constitution is currently pending before the Constitutional Court of Turkey. The Government of Turkey will inform the Secretary General of the Council of Europe when the measures referred to above have ceased to operate. This notification is given pursuant to Article 15 (art. 15) of the European Convention of Human Rights." Attached to this letter was a "descriptive summary of the content of the Decrees which have the force of law nos. 424 and 425". The only measure therein described relating to Article 5 of the Convention (art. 5) was as follows: "The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Minister of the Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency ..." 32. By a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Decree no. 430 had been enacted, which limited the powers previously afforded to the Governor of the state of emergency region under Decrees nos. 424 and 425. 33. On 5 May 1992 the Permanent Representative wrote to the Secretary General that: "As most of the measures described in the decrees which have the force of Law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13) are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention (art. 5) only. The Derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention (art. 6, art. 8, art. 10, art. 11, art. 13) is no longer in effect; consequently, the corresponding reference to these Articles (art. 6, art. 8, art. 10, art. 11, art. 13) is hereby deleted from the said Notice of Derogation." PROCEEDINGS BEFORE THE COMMISSION 34. In his application of 20 May 1993 (no. 21987/93) to the Commission, Mr Aksoy complained that he had been subjected to treatment contrary to Article 3 of the Convention (art. 3) during his detention in police custody in November/December 1992; that, during the course of his detention, he was not brought before a judge or other authorised officer in violation of Article 5 para. 3 (art. 5-3); and that he was not provided with the opportunity to bring proceedings against those responsible for his ill ‑ treatment, in violation of Articles 6 para. 1 and 13 (art. 6-1, art. 13). Following Mr Aksoy ’ s death on 16 April 1994, his representatives alleged that the killing was a direct result of his application to the Commission and was an interference with his right of individual petition under Article 25 of the Convention (art. 25). 35. The Commission declared the application admissible on 19 October 1994. In its report of 23 October 1995 (Article 31) (art. 31), it expressed the opinion, by fifteen votes to one, that there had been a violation of Article 3 (art. 3) and that there had been a violation of Article 5 para. 3 (art. 5-3); by thirteen votes to three, that there had been a violation of Article 6 para. 1 (art. 6-1) and that no separate issue arose under Article 13 (art. 13); and, unanimously, that no further action need be taken in respect of the alleged interference with the effective exercise of the right of individual petition under Article 25 (art. 25). The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 36. At the hearing, the Government invited the Court to reject the application on the ground that the available domestic remedies had not been exhausted or, in the alternative, to find that there had been no violation of the Convention. 37. On the same occasion, the applicant asked the Court to find violations of Articles 3, 5, 6, 13 and 25 of the Convention (art. 3, art. 5, art. 6, art. 13, art. 25), and to rule that these breaches had been aggravated because the measures complained of formed part of an administrative practice. He also requested just satisfaction pursuant to Article 50 of the Convention (art. 50). AS TO THE LAW I. THE COURT ’ S ASSESSMENT OF THE FACTS 38. The Court recalls its constant case-law that under the Convention system the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). While the Court is not bound by the Commission ’ s findings of fact and remains free to make its own appreciation in the light of all the material before it, it is only in exceptional circumstances that it will exercise its powers in this area (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1214, para. 78). 39. In the instant case, it must be recalled that the Commission reached its findings of fact after a delegation had heard evidence in Turkey on two separate occasions, in addition to hearings in Strasbourg (see paragraph 23 above). In these circumstances, the Court considers that it should accept the facts as established by the Commission (see, mutatis mutandis, the above ‑ mentioned Akdivar and Others judgment, p. 1214, para. 81). 40. It is thus against the background of the facts as found by the Commission (see paragraph 23 above) that the Court must examine the Government ’ s preliminary objection and the applicant ’ s complaints under the Convention. II. THE GOVERNMENT ’ S PRELIMINARY OBJECTION A. The arguments of those appearing before the Court 41. The Government asked the Court to reject the applicant ’ s complaint under Article 3 of the Convention (art. 3) on the ground that, contrary to Article 26 of the Convention (art. 26), he had failed to exhaust the domestic remedies available to him. Article 26 (art. 26) provides: "The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken." The applicant (see paragraph 3 above), with whom the Commission agreed, argued that he had done all that could be expected of him to exhaust domestic remedies. 42. The Government contended that the rule relating to the exhaustion of domestic remedies was clearly established in international law and in the case-law of the Convention organs, and required the applicant to avail himself of all national remedies unless these clearly offered him no chance of success. In fact, Mr Aksoy could have had recourse to three different types of domestic remedy: a criminal prosecution, a civil action and/or administrative proceedings (see paragraphs 24-28 above). 43. With regard to the first of these options, they submitted that he could have complained about the alleged ill-treatment to the public prosecutor who saw him on 10 December 1992 (see paragraph 18 above). However, according to the Government, Mr Aksoy gave no indication on that occasion or at any time subsequently that he had been ill-treated during his time in police custody. Articles 243 and 245 of the Criminal Code, which were in force throughout Turkey, penalised the use of torture and ill-treatment for the extraction of confessions (see paragraph 24 above). Legislative Decree no. 285 on the state of emergency region transferred the power to carry out investigations into criminal acts allegedly committed by civil servants from the public prosecutors to the administrative councils (see paragraph 26 above). However, decisions by the administrative councils not to prosecute were always reviewed by the Supreme Administrative Court. In this connection, the Government submitted a number of judgments reversing orders made by administrative councils in the state of emergency region and ordering criminal proceedings to be brought against members of the gendarmerie and security police in respect of allegations of ill-treatment of detainees, and other rulings on sentencing for similar forms of misconduct. 44. Nonetheless, the Government reasoned that criminal proceedings were perhaps not the most appropriate remedy in this type of case, because of the emphasis placed on the rights of the accused as opposed to those of the complainant. They therefore drew the Court ’ s attention to the existence of an administrative remedy under Article 125 of the Turkish Constitution (see paragraph 27 above). In order to receive compensation under this provision, an individual needed only to show that there was a causal link between the acts committed by the administration and the wrong suffered; there was no requirement to prove serious misconduct on the part of a government agent. In this connection, the Government submitted examples of administrative decisions in which compensation had been awarded in respect of death caused by torture in police custody. 45. In addition, the Government argued that Mr Aksoy could have brought a civil action for damages. Again, they referred to a number of decisions of the domestic courts, including a judgment of the Court of Cassation in a case concerning a claim for damages for torture, where it was held that offences committed by members of the security forces were governed by the Code of Obligations and that, under Article 53 of that Code, an acquittal for lack of evidence in criminal proceedings was not binding on the civil courts. 46. While the applicant did not deny that the remedies identified by the Government were formally part of the Turkish legal system, he claimed that, in the region under emergency rule, they were illusory, inadequate and ineffective because both torture and the denial of effective remedies were carried out as a matter of administrative practice. In particular, he argued that reports by a number of international bodies showing that the torture of detainees continued to be systematic and widespread in Turkey raised questions about the commitment of the State to bringing an end to this practice. In this respect he referred to the European Committee for the Prevention of Torture ’ s Public Statement on Turkey (15 December 1992); the United Nations Committee against Torture ’ s Summary Account of the Results of the Proceedings Concerning the Inquiry on Turkey (9 November 1993); and the United Nations Special Rapporteur on Torture ’ s Report of 1995 (E/CN.4/1995/34). 47. He stated that there was a policy on the part of the State authorities of denying that torture ever took place, which made it extremely difficult for victims to succeed in receiving compensation and in having those responsible brought to justice. For example, it was now impossible for individuals alleging torture to obtain medical reports proving the extent of their injuries, because the forensic medical service had been reorganised and doctors who issued such reports were either threatened or moved to a different area. Prosecutors in the state of emergency region routinely failed to open investigations into alleged abuses of human rights and frequently refused even to acknowledge complaints. Such investigations as were carried out were biased and inadequate. Furthermore, lawyers and others who acted for the victims of human rights violations were subjected to threats, intimidation and abusive prosecutions and individuals were afraid to pursue domestic remedies because reprisals against complainants were so common. In these circumstances, the applicant claimed that he should not be required to pursue domestic remedies before making a complaint to Strasbourg. 48. In any case, he maintained that he had informed the public prosecutor on 10 December 1992 that he had been tortured (see paragraph 18 above) and asserted that, even if he had not, the prosecutor could plainly have observed that he did not have the proper use of his hands. The failure of the prosecutor to start a criminal investigation made it extremely difficult for the applicant to avail himself of any domestic remedy. It was not possible for him to take steps to ensure that a criminal prosecution was brought, for example by challenging a decision not to bring a prosecution in the administrative courts (see paragraph 26 above), because the lack of investigation meant that no formal decision not to prosecute was ever made. In addition, this failure prejudiced his chances of victory in civil or administrative proceedings, because in order to succeed with either type of claim it would have been necessary to prove that he had suffered torture, and in practice a ruling to that effect by a judge in criminal proceedings would have been required. 49. Finally, he reminded the Court that no remedy was available even in theory in relation to his complaint regarding the length of time he was detained without judicial control, since this was perfectly lawful under the domestic legislation (see paragraph 29 above). 50. The Commission was of the opinion that the applicant had been injured during his time in police custody (see paragraph 23 above). It followed that, although it was not possible to establish exactly what happened during his meeting with the public prosecutor on 10 December 1992, there must undoubtedly have been elements which should have prompted the latter to open an investigation or, at the very least, try to obtain further information about the applicant ’ s state of health and the treatment to which he had been subjected. The applicant had done all that could be expected of him in the circumstances, particularly in view of the facts that he must have felt vulnerable as a result of his detention and ill ‑ treatment and that he suffered health problems requiring hospitalisation following his release. The threats which he claimed to have received after making his application to the Commission and his death in circumstances which had not been fully clarified, were further elements which supported the view that the pursuance of remedies might have been attended by risks. In view of its finding that the applicant had done all that could be required of him to exhaust domestic remedies, the Commission decided that it was not necessary to determine whether there was an administrative practice on the part of the Turkish authorities of tolerating human rights abuses. B. The Court ’ s assessment 51. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 26 of the Convention (art. 26) obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. The rule is based on the assumption, reflected in Article 13 of the Convention (art. 13) - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1210, para. 65). 52. Under Article 26 (art. 26), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. However, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the "generally recognised rules of international law" to which Article 26 (art. 26) makes reference, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see the above-mentioned Akdivar and Others judgment, p. 1210, paras. 66 and 67). 53. The Court emphasises that its approach to the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 26 (art. 26) must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (see the above-mentioned Akdivar and Others judgment, p. 1211, para. 69). 54. The Court notes the provision under Turkish law of criminal, civil and administrative remedies against the ill-treatment of detainees by the agents of the State and it has studied with interest the summaries of judgments dealing with similar matters provided by the Government (see paragraphs 43-45 above). However, as previously mentioned (paragraph 53), it is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress. 55. For the purposes of this examination, the Court reiterates that it has decided to accept the Commission ’ s findings of fact in the present case (see paragraphs 39-40 above). The Commission, as has been seen (in paragraph 50 above), was of the view that the applicant was suffering from bilateral radial paralysis at the time of his interview with the public prosecutor. 56. The Court considers that, even if it were accepted that the applicant made no complaint to the public prosecutor of ill-treatment in police custody, the injuries he had sustained must have been clearly visible during their meeting. However, the prosecutor chose to make no enquiry as to the nature, extent and cause of these injuries, despite the fact that in Turkish law he was under a duty to investigate (see paragraph 26 above). It must be recalled that this omission on the part of the prosecutor took place after Mr Aksoy had been detained in police custody for at least fourteen days without access to legal or medical assistance or support. During this time he had sustained severe injuries requiring hospital treatment (see paragraph 23 above). These circumstances alone would have given him cause to feel vulnerable, powerless and apprehensive of the representatives of the State. Having seen that the public prosecutor was aware of his injuries but had taken no action, it is understandable if the applicant formed the belief that he could not hope to secure concern and satisfaction through national legal channels. 57. The Court therefore concludes that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies. Having reached this conclusion it does not consider it necessary to examine the applicant ’ s claim that there exists an administrative practice of withholding remedies in breach of the Convention. III. THE MERITS A. Alleged violation of Article 3 of the Convention (art. 3) 58. The applicant alleged that he was subjected to treatment contrary to Article 3 of the Convention (art. 3), which states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Government considered the allegations of ill-treatment to be unfounded. The Commission, however, found that the applicant had been tortured. 59. The Government raised various objections to the way in which the Commission had evaluated the evidence. They pointed to a number of factors which, in their view, should have given rise to serious doubt as to whether Mr Aksoy had been ill-treated as he claimed. For example, they questioned why the applicant had made no complaint to the public prosecutor about having been tortured (see paragraph 18 above) and found it difficult to understand why, if he had indeed been subjected to torture, he had not made any inculpatory confession. They also found it suspicious that he had waited for five days between being released from police custody and contacting the hospital (see paragraph 19 above) and observed that it could not be assumed that nothing untoward had occurred in the meantime. Finally, they raised a number of points relating to the medical evidence, including the facts that the applicant took his medical records with him when he left hospital and that there was no medical evidence of burns or other marks left by the application of electric shocks. 60. The applicant complained of having been ill-treated in different ways. He claimed to have been kept blindfolded during interrogation, which caused disorientation; to have been suspended from his arms, which were tied together behind his back ("Palestinian hanging"); to have been given electric shocks, which were exacerbated by throwing water over him; and to have been subjected to beatings, slapping and verbal abuse. He referred to medical evidence from Dicle University Medical Faculty which showed that he was suffering from a bilateral brachial plexus injury at the time of his admission to hospital (see paragraph 19 above). This injury was consistent with Palestinian hanging. He submitted that the treatment complained of was sufficiently severe as to amount to torture; it was inflicted with the purpose of inducing him to admit that he knew the man who had identified him. In addition, he contended that the conditions in which he was detained (see paragraph 13 above) and the constant fear of torture which he suffered while in custody amounted to inhuman treatment. 61. The Court, having decided to accept the Commission ’ s findings of fact (see paragraphs 39-40 above), considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention (art. 3) (see the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, paras. 108-111 and the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 26, para. 34). 62. Article 3 (art. 3), as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 88, and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, para. 79). 63. In order to determine whether any particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction drawn in Article 3 (art. 3) between this notion and that of inhuman or degrading treatment. As it has remarked before, this distinction would appear to have been embodied in the Convention to allow the special stigma of "torture" to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the United Kingdom judgment previously cited, p. 66, para. 167). 64. The Court recalls that the Commission found, inter alia, that the applicant was subjected to "Palestinian hanging", in other words, that he was stripped naked, with his arms tied together behind his back, and suspended by his arms (see paragraph 23 above). In the view of the Court this treatment could only have been deliberately inflicted; indeed, a certain amount of preparation and exertion would have been required to carry it out. It would appear to have been administered with the aim of obtaining admissions or information from the applicant. In addition to the severe pain which it must have caused at the time, the medical evidence shows that it led to a paralysis of both arms which lasted for some time (see paragraph 23 above). The Court considers that this treatment was of such a serious and cruel nature that it can only be described as torture. In view of the gravity of this conclusion, it is not necessary for the Court to examine the applicant ’ s complaints of other forms of ill-treatment. In conclusion, there has been a violation of Article 3 of the Convention (art. 3). B. Alleged violation of Article 5 para. 3 of the Convention (art. 5-3) 65. The applicant, with whom the Commission agreed, claimed that his detention violated Article 5 para. 3 of the Convention (art. 5-3). The relevant parts of Article 5 (art. 5) state: "1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ... ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ..." 66. The Court recalls its decision in the case of Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145 ‑ B, p. 33, para. 62), that a period of detention without judicial control of four days and six hours fell outside the strict constraints as to time permitted by Article 5 para. 3 (art. 5-3). It clearly follows that the period of fourteen or more days during which Mr Aksoy was detained without being brought before a judge or other judicial officer did not satisfy the requirement of "promptness". 67. However, the Government submitted that, despite these considerations, there had been no violation of Article 5 para. 3 (art. 5-3), in view of Turkey ’ s derogation under Article 15 of the Convention (art. 15), which states: "1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision (art. 15-1). 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed." The Government reminded the Court that Turkey had derogated from its obligations under Article 5 of the Convention (art. 5) on 5 May 1992 (see paragraph 33 above). 1. The Court ’ s approach 68. The Court recalls that it falls to each Contracting State, with its responsibility for "the life of [its] nation", to determine whether that life is threatened by a "public emergency" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities. Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the "extent strictly required by the exigencies" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision. In exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation (see the Brannigan and McBride v. the United Kingdom judgment of 26 May 1993, Series A no. 258-B, pp. 49-50, para. 43). 2. Existence of a public emergency threatening the life of the nation 69. The Government, with whom the Commission agreed on this point, maintained that there was a public emergency "threatening the life of the nation" in South-East Turkey. The applicant did not contest the issue, although he submitted that, essentially, it was a matter for the Convention organs to decide. 70. The Court considers, in the light of all the material before it, that the particular extent and impact of PKK terrorist activity in South-East Turkey has undoubtedly created, in the region concerned, a "public emergency threatening the life of the nation" (see, mutatis mutandis, the Lawless v. Ireland judgment of 1 July 1961, Series A no. 3, p. 56, para. 28, the above-mentioned Ireland v. the United Kingdom judgment, p. 78, para. 205, and the above-mentioned Brannigan and McBride judgment, p. 50, para. 47). 3. Whether the measures were strictly required by the exigencies of the situation a) The length of the unsupervised detention 71. The Government asserted that the applicant had been arrested on 26 November 1992 along with thirteen others on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts (see paragraph 12 above). He was held in custody for fourteen days, in accordance with Turkish law, which allows a person detained in connection with a collective offence to be held for up to thirty days in the state of emergency region (see paragraph 29 above). 72. They explained that the place in which the applicant was arrested and detained fell within the area covered by the Turkish derogation (see paragraphs 31-33 above). This derogation was necessary and justified, in view of the extent and gravity of PKK terrorism in Turkey, particularly in the South East. The investigation of terrorist offences presented the authorities with special problems, as the Court had recognised in the past, because the members of terrorist organisations were expert in withstanding interrogation, had secret support networks and access to substantial resources. A great deal of time and effort was required to secure and verify evidence in a large region confronted with a terrorist organisation that had strategic and technical support from neighbouring countries. These difficulties meant that it was impossible to provide judicial supervision during a suspect ’ s detention in police custody. 73. The applicant submitted that he was detained on 24 November 1992 and released on 10 December 1992. He alleged that the post-dating of arrests was a common practice in the state of emergency region. 74. While he did not present detailed arguments against the validity of the Turkish derogation as a whole, he questioned whether the situation in South-East Turkey necessitated the holding of suspects for fourteen days or more without judicial supervision. He submitted that judges in South-East Turkey would not be put at risk if they were permitted and required to review the legality of detention at shorter intervals. 75. The Commission could not establish with any certainty whether the applicant was first detained on 24 November 1992, as he claimed, or on 26 November 1992, as alleged by the Government, and it therefore proceeded on the basis that he was held for at least fourteen days without being brought before a judge or other officer authorised by law to exercise judicial power. 76. The Court would stress the importance of Article 5 (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law (see the above-mentioned Brogan and Others judgment, p. 32, para. 58). Furthermore, prompt judicial intervention may lead to the detection and prevention of serious ill ‑ treatment, which, as stated above (paragraph 62), is prohibited by the Convention in absolute and non- derogable terms. 77. In the Brannigan and McBride judgment (cited at paragraph 68 above), the Court held that the United Kingdom Government had not exceeded their margin of appreciation by derogating from their obligations under Article 5 of the Convention (art. 5) to the extent that individuals suspected of terrorist offences were allowed to be held for up to seven days without judicial control. In the instant case, the applicant was detained for at least fourteen days without being brought before a judge or other officer. The Government have sought to justify this measure by reference to the particular demands of police investigations in a geographically vast area faced with a terrorist organisation receiving outside support (see paragraph 72 above). 78. Although the Court is of the view - which it has expressed on several occasions in the past (see, for example, the above-mentioned Brogan and Others judgment) - that the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for fourteen days without judicial intervention. This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture (see paragraph 64 above). Moreover, the Government have not adduced any detailed reasons before the Court as to why the fight against terrorism in South-East Turkey rendered judicial intervention impracticable. b) Safeguards 79. The Government emphasised that both the derogation and the national legal system provided sufficient safeguards to protect human rights. Thus, the derogation itself was limited to the strict minimum required for the fight against terrorism; the permissible length of detention was prescribed by law and the consent of a public prosecutor was necessary if the police wished to remand a suspect in custody beyond these periods. Torture was prohibited by Article 243 of the Criminal Code (see paragraph 24 above) and Article 135 (a) stipulated that any statement made in consequence of the administration of torture or any other form of ill ‑ treatment would have no evidential weight. 80. The applicant pointed out that long periods of unsupervised detention, together with the lack of safeguards provided for the protection of prisoners, facilitated the practice of torture. Thus, he was tortured with particular intensity on his third and fourth days in detention, and was held thereafter to allow his injuries to heal; throughout this time he was denied access to either a lawyer or a doctor. Moreover, he was kept blindfolded during interrogation, which meant that he could not identify those who mistreated him. The reports of Amnesty International (" Turkey : a Policy of Denial", February 1995), the European Committee for the Prevention of Torture and the United Nations Committee against Torture (cited at paragraph 46 above) showed that the safeguards contained in the Turkish Criminal Code, which were in any case inadequate, were routinely ignored in the state of emergency region. 81. The Commission considered that the Turkish system offered insufficient safeguards to detainees, for example there appeared to be no speedy remedy of habeas corpus and no legally enforceable rights of access to a lawyer, doctor, friend or relative. In these circumstances, despite the serious terrorist threat in South-East Turkey, the measure which allowed the applicant to be detained for at least fourteen days without being brought before a judge or other officer exercising judicial functions exceeded the Government ’ s margin of appreciation and could not be said to be strictly required by the exigencies of the situation. 82. In its above-mentioned Brannigan and McBride judgment (cited at paragraph 68), the Court was satisfied that there were effective safeguards in operation in Northern Ireland which provided an important measure of protection against arbitrary behaviour and incommunicado detention. For example, the remedy of habeas corpus was available to test the lawfulness of the original arrest and detention, there was an absolute and legally enforceable right to consult a solicitor forty-eight hours after the time of arrest and detainees were entitled to inform a relative or friend about their detention and to have access to a doctor (op. cit., pp. 55-56, paras. 62-63). 83. In contrast, however, the Court considers that in this case insufficient safeguards were available to the applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him. 84. The Court has taken account of the unquestionably serious problem of terrorism in South-East Turkey and the difficulties faced by the State in taking effective measures against it. However, it is not persuaded that the exigencies of the situation necessitated the holding of the applicant on suspicion of involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer. 4. Whether the Turkish derogation met the formal requirements of Article 15 para. 3 (art. 15-3) 85. None of those appearing before the Court contested that the Turkish Republic ’ s notice of derogation (see paragraph 33 above) complied with the formal requirements of Article 15 para. 3 (art. 15-3), namely to keep the Secretary General of the Council of Europe fully informed of the measures which were taken in derogation from the Convention and the reasons therefor. 86. The Court is competent to examine this issue of its own motion (see the above-mentioned Lawless judgment, p. 55, para. 22, and the above ‑ mentioned Ireland v. the United Kingdom judgment, p. 84, para. 223), and in particular whether the Turkish notice of derogation contained sufficient information about the measure in question, which allowed the applicant to be detained for at least fourteen days without judicial control, to satisfy the requirements of Article 15 para. 3 (art. 15-3). However, in view of its finding that the impugned measure was not strictly required by the exigencies of the situation (see paragraph 84 above), the Court finds it unnecessary to rule on this matter. 5. Conclusion 87. In conclusion, the Court finds that there has been a violation of Article 5 para. 3 of the Convention (art. 5-3). C. Alleged lack of remedy 88. The applicant complained that he was denied access to a court, in violation of Article 6 para. 1 of the Convention (art. 6-1), which provides, so far as is relevant: "In the determination of his civil rights ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..." In addition, he claimed that there was no effective domestic remedy available to him, contrary to Article 13 of the Convention (art. 13), which states: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." 89. The Government contended that, since the applicant had never even attempted to bring proceedings, it was not open to him to complain that he had been denied access to a court. They further argued, as they had in connection with their preliminary objection (see paragraphs 41-45 above) that there were a number of effective remedies available. 90. For the applicant, the prosecutor ’ s decision not to open an investigation had effectively rendered it impossible for him to enforce his civil right to compensation (see paragraph 48 above). He submitted that, under Turkish law, civil proceedings could not be contemplated until the facts concerning the events had been established and the perpetrators identified by a criminal prosecution. Without this, civil proceedings had no prospect of success. In addition, he stated that the ability to seek compensation for torture would represent only one part of the measures necessary to provide redress; it would be unacceptable for a State to claim that it fulfilled its obligation simply by providing compensation, since this would in effect be to allow States to pay for the right to torture. He claimed that the remedies necessary to meet his Convention claims either did not exist, even in theory, or did not operate effectively in practice (see paragraphs 46-47 above). 91. The Commission found a violation of Article 6 para. 1 (art. 6-1), for the same reasons that it found in the applicant ’ s favour under Article 26 of the Convention (art. 26) (see paragraph 50 above). In view of this finding, it did not consider it necessary to examine the complaint under Article 13 (art. 13). 1. Article 6 para. 1 of the Convention (art. 6-1) 92. The Court recalls that Article 6 para. 1 (art. 6-1) embodies the "right to a court", of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect (see, for example, the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, para. 80). There can be no doubt that Article 6 para. 1 (art. 6-1) applies to a civil claim for compensation in respect of ill ‑ treatment allegedly committed by agents of the State (see, for example, the Tomasi judgment cited at paragraph 61 above, p. 43, paras. 121-22). 93. The Court notes that it was not disputed by the applicant that he could in theory have brought civil proceedings for damages in respect of his ill-treatment. He did claim that the failure of the prosecutor to mount a criminal investigation in practice meant that he would have had no chance of success in civil proceedings (see paragraph 90 above). The Court recalls, however, that because of the special circumstances which existed in his case (see paragraph 57 above), Mr Aksoy did not even attempt to make an application before the civil courts. Given these facts, it is not possible for the Court to determine whether or not the Turkish civil courts would have been able to deal with Mr Aksoy ’ s claim, had he brought it before them. In any event, the Court observes that the crux of the applicant ’ s complaint concerned the prosecutor ’ s failure to mount a criminal investigation (see paragraph 90 above). It further notes the applicant ’ s argument that the possibility of seeking compensation for torture would represent only one part of the measures necessary to provide redress (also in paragraph 90 above). 94. In the Court ’ s view, against this background, it is more appropriate to consider this complaint in relation to the more general obligation on States under Article 13 (art. 13) to provide an effective remedy in respect of violations of the Convention. 2. Article 13 of the Convention (art. 13) 95. The Court observes that Article 13 (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see the Chahal judgment cited at paragraph 62 above, pp. 1869-70, para. 145). The scope of the obligation under Article 13 (art. 13) varies depending on the nature of the applicant ’ s complaint under the Convention (see the above-mentioned Chahal judgment, pp. 1870-71, paras. 150-51). Nevertheless, the remedy required by Article 13 (art. 13) must be "effective" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State. 96. The Court would first make it clear that its finding (in paragraph 57 above) that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies should not be taken as meaning that remedies are ineffective in South-East Turkey (see, mutatis mutandis, the Akdivar and Others judgment cited at paragraph 38 above, pp. 1213-14, para. 77). 97. Secondly, the Court, like the Commission, would take judicial notice of the fact that allegations of torture in police custody are extremely difficult for the victim to substantiate if he has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence. Furthermore, having been ill-treated in this way, an individual will often have had his capacity or will to pursue a complaint impaired. 98. The nature of the right safeguarded under Article 3 of the Convention (art. 3) has implications for Article 13 (art. 13). Given the fundamental importance of the prohibition of torture (see paragraph 62 above) and the especially vulnerable position of torture victims, Article 13 (art. 13) imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture. Accordingly, as regards Article 13 (art. 13), where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an "effective remedy" entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which imposes a duty to proceed to a "prompt and impartial" investigation whenever there is a reasonable ground to believe that an act of torture has been committed. However, in the Court ’ s view, such a requirement is implicit in the notion of an "effective remedy" under Article 13 (art. 13) (see, mutatis mutandis, the Soering judgment cited at paragraph 62 above, pp. 34-35, para. 88). 99. Indeed, under Turkish law the prosecutor was under a duty to carry out an investigation. However, and whether or not Mr Aksoy made an explicit complaint to him, he ignored the visible evidence before him that the latter had been tortured (see paragraph 56 above) and no investigation took place. No evidence has been adduced before the Court to show that any other action was taken, despite the prosecutor ’ s awareness of the applicant ’ s injuries. Moreover, in the Court ’ s view, in the circumstances of Mr Aksoy ’ s case, such an attitude from a State official under a duty to investigate criminal offences was tantamount to undermining the effectiveness of any other remedies that may have existed. 100. Accordingly, in view in particular of the lack of any investigation, the Court finds that the applicant was denied an effective remedy in respect of his allegation of torture. In conclusion, there has been a violation of Article 13 of the Convention (art. 13). D. Alleged violation of Article 25 para. 1 of the Convention (art. 25-1) 101. The applicant alleged that there had been an interference with his right of individual petition, in breach of Article 25 para. 1 of the Convention (art. 25-1), which states: "The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right." 102. It is to be recalled that Mr Aksoy was killed on 16 April 1994; according to his representatives, this was a direct result of his persisting with his application to the Commission. It was alleged that he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994 (see paragraph 22 above). 103. The Government, however, denied that there had been any interference with the right of individual petition. They submitted that Mr Aksoy had been killed in a settling of scores between quarrelling PKK factions and told the Court that a suspect had been charged with his murder (see paragraph 22 above). 104. The Commission was deeply concerned by Mr Aksoy ’ s death and the allegation that it was connected to his application to Strasbourg. Nonetheless, it did not have any evidence on which to form a conclusion as to the truth of this claim or the responsibility for the killing. 105. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 25 of the Convention (art. 25) that applicants or potential applicants are able to communicate freely with the Commission without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1219, para. 105). 106. That being so, in the present case the Commission was unable to find any evidence to show that Mr Aksoy ’ s death was connected with his application, or that the State authorities had been responsible for any interference, in the form of threats or intimidation, with his rights under Article 25 para. 1 (art. 25-1), and no new evidence in this connection was presented to the Court. The Court cannot therefore find that there has been a violation of Article 25 para. 1 of the Convention (art. 25-1). E. Alleged administrative practice of violating the Convention 107. The applicant additionally asked the Court to rule that Articles 3, 5 para. 3, 6 para. 1, 13 and 25 para. 1 (art. 3, art. 5-3, art. 6-1, art. 13, art. 25 ‑ 1) were violated as a matter of practice in South-East Turkey, with high ‑ level official tolerance. This entailed that the Court should find aggravated violations of the Convention. 108. With reference to the reports of the international bodies cited above (paragraph 46), he argued that torture at the hands of the police was widespread in Turkey and that this had been the case for many years. The State authorities were aware of the problem but had chosen not to implement recommended safeguards. Furthermore, the victims of torture and of other human rights abuses were routinely denied access to judicial remedies in breach of Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13) and were harassed, threatened and subjected to violence if they attempted to bring their complaints before the Strasbourg organs, contrary to Article 25 para. 1 (art. 25-1). Finally, since the domestic law permitted suspects to be detained for long periods in violation of Article 5 para. 3 (art. 5-3), this was evidence of an administrative practice of breaching that provision (art. 5-3). 109. The Court is of the view that the evidence established by the Commission is insufficient to allow it to reach a conclusion concerning the existence of any administrative practice of the violation of the above Articles of the Convention (art. 3, art. 5-3, art. 6-1, art. 13, art. 25-1). IV. Application of Article 50 of the Convention (art. 50) 110. Under Article 50 of the Convention (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 111. In his memorial the applicant claimed compensation for pecuniary damage caused by his detention and torture, consisting of medical expenses of 16,635,000 Turkish liras and loss of earnings amounting to £40 (sterling). In addition he sought non-pecuniary damages of £25,000, which, he submitted, should be increased by a further £25,000 in the event that the Court found an aggravated violation of the Convention on the grounds of administrative practice. He also requested payment of his legal fees and expenses which totalled £20,710. 112. The Government offered no comment either in its memorial or during the hearing before the Court as regards these claims. A. Damage 113. In view of the extremely serious violations of the Convention suffered by Mr Zeki Aksoy and the anxiety and distress that these undoubtedly caused to his father, who has continued with the application after his son ’ s death (see paragraph 3 above), the Court has decided to award the full amounts of compensation sought as regards pecuniary and non ‑ pecuniary damage. In total this amounts to 4,283,450,000 (four thousand two hundred and eighty-three million, four hundred and fifty thousand) Turkish liras (based on the rate of exchange applicable on the date of adoption of the present judgment). B. Costs and expenses 114. The Court considers that the applicant ’ s claim for costs and expenses is reasonable and awards it in full, less the amounts received by way of legal aid from the Council of Europe which have not already been taken into account in the claim. C. Default interest 115. With regard to the sum awarded in Turkish liras, default interest is to be payable at the rate of 30% per annum, which, according to the information available to the Court, is the statutory rate of interest applicable in Turkey at the date of adoption of the present judgment. As the award in respect of costs and expenses is to be made in pounds sterling, the Court considers it appropriate that interest should be payable on this sum at the rate of 8% per annum, which, according to the information available to it, is the statutory rate applicable in England and Wales at the date of adoption of the present judgment. | The Court found that there had been a violation of Article 3 of the Convention; the treatment was of such a serious and cruel nature that it could only be described as torture. It observed in particular as follows: “Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention ... Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation …” (paragraph 62 of the judgment). |
810 | Legal capacity | RELEVANT LEGAL FRAMEWORK RELEVANT DOMESTIC LAW AND PRACTICEThe Civil Code (“the CC”) The Civil Code (“the CC”) The Civil Code (“the CC”) 26. The relevant provisions of the CC concerning legal incapacitation read as follow: Article 164 § 1 Conditions “Persons who do not have the necessary capacity to care for their interests, because of insanity or severe mental defect, shall be placed under guardianship.” Article 167 Appointment of special guardian “In case of need and pending a decision on the request for legal incapacitation, the guardianship court may appoint a special guardian to care for and represent the person whose incapacitation has been requested and to manage his or her possessions.” Article 170 Appointment of legal guardian “By the decision declaring a person legally incapable, the guardianship court immediately appoints a guardian for the protection of the person placed under legal guardianship. The provisions of Articles 114-120 [concerning the appointment of a legal guardian for a child] shall apply accordingly.” Article 171 Application of guardianship rules “The rules concerning legal guardianship of children below the age of 14 shall apply to the guardianship of a person divested of legal capacity, unless otherwise prescribed by law.” Article 173 Change of legal guardian “(1) The legal guardian of a person divested of legal capacity may seek to be replaced three years after his or her appointment. (2) The legal guardian may seek to be replaced before the time-limit of three years has elapsed, where there are compelling reasons.” 27. In addition, Law no. 71/2011 on the application of the CC defines insanity as follows: Article 211 “For the purposes of the Civil Code and of the civil laws in force, the expressions insanity and severe mental defect are to be understood as a mental illness or a mental disability which results in the inability of a person to act critically and predictably with regard to the social and legal consequences that may arise from the exercise of civil rights and obligations.” The Code of Civil Procedure (“the CCP”) 28. Articles 936-43 of the CCP regulate the procedure whereby a person is divested of legal capacity. This procedure takes place in the presence of the person concerned, from whom the court hears evidence in order to assess his or her mental abilities, having regard also to the evidence in the file. Mental Health Act 29. The Mental Health Act (Law no. 487 of 11 July 2002 on mental health and the protection of people with mental disorders) provides for the rights of persons with mental disorders. In particular, under Article 41 of that Act, persons with mental disorders have the freedom to exercise their civil, political, economic, social and cultural rights guaranteed by the Universal Declaration of Human Rights and by other international conventions and treaties ratified by Romania. Article 42 states that any person with mental disorders has the right to be recognised as an individual and has the right to private life. The Constitutional Court 30. In its decision no. 795/2020 (published in the Official Bulletin on 28 December 2020 and applicable from that date) the Constitutional Court ruled that legal guardians must be accountable for their acts before a court, as it considered that the situation prevailing at that time, whereby their supervision was exercised exclusively by the social welfare authorities, was unconstitutional. In its decision the Constitutional Court also noted that, at that time, the only instance in which a person divested of legal capacity could apply to a court was to seek to have his or her incapacitation measure lifted (Article 177 § 2 of the CC). 31. Decision no. 601, adopted on 16 July 2020 and applicable since 27 January 2021 when it was published in the Official Bulletin, declared Article 164 § 1 of the CC unconstitutional in so far as it did not allow for an individualised periodic assessment of the situation. The relevant passages of this decision read as follows: “30. The [Constitutional Court] notes that the legislation under review establishes a system of substitution under which the rights and obligations of a person divested of legal capacity are exercised by a legal guardian, regardless of the degree of impairment of the person’s discernment, to the detriment of a system of support characterised by a support mechanism to be provided by the State depending on the degree of impairment of discernment. ... 46. In conclusion, the [Constitutional Court] notes that the measure consisting in divesting a person of legal capacity, as regulated by Article 164 § 1 of the [CC], is not accompanied by sufficient safeguards to ensure respect for human rights and fundamental freedoms. It does not take into account the fact that there may be different degrees of incapacitation, or the diversity of a person’s interests, it is not limited in time and is not subject to periodic review. Any protective measure must be proportionate to the level of capacity of the person concerned, must be suited to the person’s lifestyle, be applied for the shortest time possible, must be periodically reviewed and must take into account the wishes and preferences of the disabled person. Moreover, when introducing a protective measure, the legislature must take into account the fact that there may be different degrees of incapacitation, and that mental deficiency may vary over time. Lack of mental capacity or discernment can take various forms, for instance, total/partial or reversible/irreversible, and this situation requires that the protective measures be appropriate to the reality; however, this is not taken into account in the legislative measures concerning legal incapacitation. Therefore, the different degrees of disability must be afforded corresponding degrees of protection, and the legislature must identify proportionate solutions. Legal incapacitation must not lead to the loss of the exercise of all civil rights, and must be assessed individually in each case. 47. Consequently, the [Constitutional Court] notes that in the absence of safeguards accompanying the protective measure of legal incapacitation, there is a breach of the corresponding constitutional provisions read in the light of Article 12 of the Convention on the Rights of Persons with Disabilities. 48. ... Based on the recommendations made by the Committee on the Rights of Persons with Disabilities ... to the member States, ... the National Authority for the Rights of People with Disabilities may make legislative proposals in this field, and the Parliament or the Government will have a responsibility to enact legislation which complies with the Constitution and the Convention on the Rights of Persons with Disabilities.” RELEVANT INTERNATIONAL MATERIALS 32. The relevant provisions of international law concerning the right of people with disabilities to respect for their rights (notably the right to maximum preservation of their capacity, respect for their privacy on an equal basis with others, and the right to equality and non-discrimination), including the provisions of the United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”), which was ratified by Romania on 31 January 2011, are described in A.N. v. Lithuania (no. 17280/08, §§ 68 ‑ 69, 31 May 2016) as well as in Cînţa v. Romania (no. 3891/19, §§ 27 ‑ 34, 18 February 2020) and in N. v. Romania (no. 59152/08, §§ 101 ‑ 108, 28 November 2017). THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 33. The applicant complained that the measure divesting him of legal capacity had breached his right to respect for his private life protected by Article 8 of the Convention. He also complained, relying on the same Article, about the manner in which the authorities had changed his legal guardian through proceedings in which he was not involved. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” AdmissibilityNon-exhaustion of domestic remedies Non-exhaustion of domestic remedies Non-exhaustion of domestic remedies (a) The parties’ submissions 34. The Government argued that the applicant should have appealed against the interlocutory decision of 22 August 2019 (see paragraph 23 above) within the thirty-day time-limit set by law which, in their view, had expired on 24 September 2019. The applicant, who at that time was already being represented by his present counsel, had been aware that the proceedings were ongoing, as on 11 February 2019 he had given his consent to the change of legal guardian (see paragraph 24 above). 35. The applicant reiterated that he had not been a party to those proceedings and for that reason had not been allowed by law to lodge an appeal against the interlocutory decision. Moreover, the letter in question, signed four months previously, did not prove that he had been aware of the existence of those proceedings. (b) The Court’s assessment 36. In respect of the requirement to exhaust domestic remedies, the Court refers to the well-established principles of its case-law (as reiterated notably in Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 83 ‑ 89, 9 July 2015, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). 37. The Court observes that the gravamen of the applicant’s complaint concerning the change of legal guardian is his ability to participate in the relevant proceedings. Consequently, the answer to the objection raised by the Government is intrinsically linked to the examination of the merits of this complaint. The objection should therefore be joined to the merits (see, mutatis mutandis, A.N. v. Lithuania, no. 17280/08, § 82, 31 May 2016). Incompatibility ratione materiae (a) The parties’ submissions 38. The Government averred that the issue of the applicant’s legal incapacitation had already been assessed by the Committee of Ministers as part of the execution of the judgment rendered by the Court in the case of N. v. Romania (no. 59152/08, 28 November 2017 – see paragraph 9 above). 39. The applicant observed that the Government’s assertions could be considered a plea of inadmissibility. In this vein, he pointed out that the two cases he had brought before the Court concerned separate facts and separate violations of the Convention. Moreover, on the date of submission of his observations in the present case, that is to say, three years after the adoption of the judgment in the case of N. v. Romania (cited above), the applicant’s placement under legal guardianship had not yet been reviewed by the authorities, despite the Committee of Ministers’ exhortations. (b) The Court’s assessment 40. Although not formulated as such, the Court considers that the Government’s submissions on this point may be interpreted as a plea of inadmissibility of the complaint concerning the applicant’s legal incapacitation. The Court will therefore examine it accordingly. (i) General principles 41. The Court reiterates that the measures taken by a respondent State to remedy a violation found by the Court can raise a new issue undecided by the judgment and, as such, may form the subject of a new application that may be dealt with by the Court (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 62, ECHR 2009). 42. Reference should be made in this context to the criteria established in the case-law concerning Article 35 § 2 (b), according to which an application is to be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information” (ibid., § 63). (ii) Application of those principles to the facts of the present case 43. The Court must thus ascertain whether the two applications brought before it by the applicant relate essentially to the same person, the same facts and the same complaints (see, mutatis mutandis, Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, §§ 41-42, 15 June 2017). 44. While it is undisputed that both the applications in question were lodged by the same person, the Court considers that the factual situations and the complaints raised are different. The Court reiterates that the first application, in the case of N. v. Romania, cited above, concerned the lawfulness of the applicant’s psychiatric detention (see paragraph 6 above), whereas the present application concerns the applicant’s legal incapacitation and the choice of his legal guardian (see paragraph 33 above). 45. The Court thus concludes that the complaints raised in the present application are not substantially the same as those examined in N. v. Romania (cited above) for the purpose of Article 35 § 2 (b) of the Convention (see, mutatis mutandis, Sadak v. Turkey, nos. 25142/94 and 27099/95, §§ 32-33, 8 April 2004). 46. Furthermore, the Court notes that the supervision by the Committee of Ministers, in the context of execution of the judgment rendered by the Court in N. v. Romania, concerns exclusively the complaints under Article 5 of the Convention, as is clear from point no. 1 of the Committee of Ministers’ decision (see paragraph 9 above). The reference to deficiencies in the system of legal protection of persons with mental disabilities, inscribed in points nos. 4 to 6 of that decision, does not change this conclusion, in particular in the absence of a Court finding of a violation in that regard, in respect of the applicant. 47. It follows that the Government’s objection concerning the compatibility ratione materiae of the application must be dismissed. Other reasons for inadmissibility 48. The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 49. The applicant argued that he had been automatically placed under legal guardianship as the law had not allowed for an individualised assessment of his situation. Moreover, the measure had been taken based on his mental illness and lack of family support and no alternative solutions had been sought by the authorities. 50. The applicant also reiterated that the law itself had allowed the proceedings for the change of legal guardian to take place without any input from him. Moreover, the court had not subjected that request to any meaningful scrutiny, including by examining the performance of the outgoing guardian or the status of the incoming guardian, or the latter’s unsuitability for the role owing to his position as the applicant’s therapist and case manager and at the same time as an employee of the centre where the applicant was living. Moreover, the decision had been taken by the court without hearing the applicant or assessing his needs, wishes or preferences. (b) The Government 51. The Government accepted that the applicant’s legal incapacitation constituted interference with his right to respect for his private life. However, they argued that the system had provided sufficient safeguards during the proceedings in question: the applicant had participated fully and had been assisted by counsel; the courts had relied not only on his diagnosis but also on two medical expert examinations and had examined the applicant’s personal circumstances (notably the absence of any family or acquaintance willing to help); and the courts had assessed the possibility of applying less intrusive measures. While accepting that a system which only provided for full capacity or total incapacitation was not Convention compliant, the Government argued that in the present case the issue did not arise, as the measure of legal incapacitation had been necessary and appropriate to the applicant’s personal circumstances. In their view, the Constitutional Court’s decision of 16 July 2020 (see paragraph 31 above) should not be interpreted as excluding the possibility of total legal incapacitation if that measure was necessary in the circumstances of a given case. 52. Lastly, the Government argued that both the applicant and the two legal guardians had given their express consent to the change of legal guardian and that the domestic court’s role, under Article 173 of the CC (see paragraph 26 above), was limited to taking note of that change and assessing whether it complied with the applicant’s best interests. Moreover, the applicant had allowed that decision to become final by failing to appeal against it (see paragraph 34 above). The Court’s assessment (a) General principles 53. The Court has already held that deprivation of legal capacity undeniably constitutes serious interference with the right to respect for a person’s private life protected under Article 8. It reiterates that Article 8 secures to the individual a sphere within which he or she can freely pursue the development and fulfilment of his or her personality (see Shtukaturov v. Russia, no. 44009/05, § 83, ECHR 2008, and A.N. v. Lithuania, cited above, § 111). Any interference with an individual’s right to respect for his private life will constitute a breach of Article 8 unless it was “in accordance with the law”, pursued a legitimate aim or aims under Article 8 § 2 and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought to be achieved (see A.N. v. Lithuania, cited above, § 113). 54. As a rule, in such a complex matter as determining somebody’s mental capacity, the authorities should enjoy a wide margin of appreciation. This is mostly explained by the fact that the national authorities have the benefit of direct contact with the people concerned and are therefore particularly well placed to determine such issues. The task of the Court is rather to review under the Convention the decisions taken by the national authorities in the exercise of their powers in this regard (ibid., § 116, with further references). 55. However, the Court reiterates that if a restriction on fundamental rights applies to someone belonging to a particularly vulnerable group in society that has suffered considerable discrimination in the past, such as the mentally disabled, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs (see A.N. v. Lithuania, cited above, § 125, and Cînța v. Romania, no. 3891/19, § 41, 18 February 2020, with further references). (b) Application of those principles to the facts of the present case 56. In the light of the above, and in the context of its examination of the present case, the Court does not propose to substitute its own assessment for that of the domestic courts. In this connection the Court reiterates that whilst Article 8 of the Convention contains no explicit procedural requirements, the decision‑making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. The extent of the State’s margin of appreciation thus depends on the quality of the decision-making process. If the procedure was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism (see A.N. v. Lithuania, § 118, and, mutatis mutandis, Cînța, § 42 both cited above). 57. At the outset, the Court observes that the present complaint is twofold: on the one hand, the applicant challenges the measure consisting in his legal incapacitation, and on the other hand, he objects to the manner in which the change of legal guardian took place. The Court will examine these two aspects in turn. (i) Legal incapacitation 58. The Court observes that it is undisputed between the parties that the decision of 30 August 2016 (see paragraph 14 above), upheld by the final decision of 27 February 2018 (see paragraph 19 above), amounted to interference with the applicant’s private life (see paragraph 51 above). 59. The incapacitation proceedings concerning the applicant had a legal basis, namely Article 164 § 1 of the CC (see paragraph 26 above) and Articles 936-43 of the CCP (see paragraph 28 above). The Court also has no reason to doubt that the measure was taken in the applicant’s interests, to protect his health as well as the rights and freedoms of others. 60. It thus remains to be examined whether the measure of full legal incapacitation was necessary and, in particular, whether the law providing such incapacitation as a general measure was compatible with the Convention requirements (see, mutatis mutandis and in the context of Article 10 of the Convention, Bayev and Others v. Russia, nos. 67667/09 and 2 others, §§ 63 ‑ 64, 20 June 2017). 61. In this connection the Court notes firstly that the consequences of that interference were very serious. As a result of his incapacitation, the applicant became fully dependent on his legal guardians, to whom the courts transferred the exercise of his rights (see paragraph 30 of Decision no. 601/2020 of the Constitutional Court, cited in paragraph 31 above). 62. Admittedly, in reaching their decision, the courts referred to medical expert reports prepared for the purposes of the proceedings in question after direct examination of the applicant (see paragraphs 12 and 18 above). Moreover, the applicant participated in the proceedings and benefited from the assistance of counsel (see paragraphs 13 and 15 above). He was also heard by the District Court (see paragraph 13 above). 63. However, it appears that the existing legislative framework did not leave the judges, or in this case the forensic experts, any room for an individualised assessment of the applicant’s situation. The CC distinguishes between full capacity and full incapacity, but does not provide for a “tailor ‑ made response” (see paragraphs 26 and 27 above; see also Shtukaturov, § 95, and A.N. v. Lithuania, § 124, both cited above). The Constitutional Court, in its recent Decision no. 601 of 16 July 2020, has also found that the applicable legislative provision is not accompanied by sufficient safeguards as it does not take into account the fact that there may be different degrees of incapacitation, or the diversity of a person’s interests (see paragraph 31 above). 64. In its final decision of 27 February 2018, the Buzău County Court acknowledged the fact that the legislation did not allow for a more nuanced response to the applicant’s problem (see paragraph 19 above). Furthermore, the Constitutional Court has recently declared the legal provisions in question to be unconstitutional and in violation of the State’s international obligations with respect to the protection of the rights of people with disabilities (see paragraph 31 above). The Court notes with satisfaction that these recent findings are also consistent with the Court’s case-law in the matter (see, among many other authorities, Shtukaturov, cited above, § 95, and Nikolyan v. Armenia, no. 74438/14, §§ 122-23, 3 October 2019, with further references). 65. That said, the fact remains that in accordance with the applicable legal provisions, at the time when it was taken in respect of the applicant, that measure could not be modulated and the applicant’s actual needs and wishes could not be factored into the decision ‑ making process. 66. As a result, in those circumstances, the applicant’s rights under Article 8 were restricted by law more than was strictly necessary. There has accordingly been a violation of Article 8 in respect of the applicant’s legal incapacitation. (ii) Change of legal guardian 67. The Court observes that the change of legal guardian is closely related to the applicant’s lack of legal capacity, and reiterates its finding that the latter undeniably constituted serious interference with the applicant’s right to respect for his private life as protected under Article 8 (see paragraphs 53, 58 and 61 above). It further notes that the legal guardian plays a significant role in the life of a person divested of legal capacity, as in practice the guardian exercises that person’s rights on his or her behalf (see paragraph 61 above). 68. This complaint is, in essence, directed at the fact that the applicant had no say in the proceedings leading to the appointment of a new guardian. The Court observes that the applicant, on account of his legal incapacitation, was ultimately prevented from deciding for himself about who would protect his interests and exercise his rights. There has accordingly been interference with the applicant’s right to respect for his private life under Article 8 of the Convention (see, mutatis mutandis, A.-M.V. v. Finland, no. 53251/13, § 77, 23 March 2017). 69. The change of legal guardian had a legal basis, namely Article 173 of the CC (see paragraph 26 above). The Court also has no reason to doubt that the measure was taken in the applicant’s interests (see, mutatis mutandis, paragraph 59 above). 70. It thus remains to be ascertained whether the measure was necessary in the circumstances of the case. In this regard the Court observes that the proceedings before the Bucharest District Court took place between the social welfare authorities and the two legal guardians. The applicant was not present in court (see paragraph 22 in fine above). 71. Although, as pointed out by the Government, the applicant at one point appears to have given his consent to the change of legal guardian, his opinion did not feature in the court’s reasoning (see paragraph 24 above). In fact, it appears that the applicant’s statement was not even part of the court file (see paragraph 24 in fine above). 72. The applicant was excluded from those proceedings for the sole reason that he had been placed under guardianship, without any consideration for his actual condition or capacity to understand the matter and express his preferences. In this respect the case differs from A. ‑ M.V. v. Finland (cited above, §§ 85-86), where the applicant was heard by the court and his wishes as to his choice of residence were taken into account along with expert evidence and witness testimony. 73. In this regard the Court is also not convinced that the applicant would have had a real opportunity to appeal against the impugned decision (see paragraphs 34 and 52 above), not least because it appears that the decision in question was never served on the applicant (see paragraphs 22 in fine and 25 above, and, mutatis mutandis, X and Y v. Croatia, cited above, § 66 ). The Court further reiterates that, at that time, the only instance in which a person divested of legal capacity could apply to a court was to seek to have his or her incapacitation measure lifted (see paragraph 30 above). The Court therefore dismisses the Government’s objection of non ‑ exhaustion of domestic remedies (see paragraphs 34-37 above). 74. In the light of the foregoing, the Court considers that the decision‑making process leading to the impugned decision of 22 August 2019 (see paragraph 23 above) was not conducted so as to ensure that the applicant’s current state of health was properly assessed and that all views and interests were duly taken into account (see the case-law quoted in paragraph 56 above; see also, mutatis mutandis, Cînța, cited above, § 57, and contrast A. ‑ M.V. v. Finland, cited above, § 89). The Court is thus not satisfied that the said procedure was accompanied by safeguards that were commensurate with the gravity of the interference and the seriousness of the interests at stake (see also, mutatis mutandis and in the context of Article 6 § 1 of the Convention, Stanev v. Bulgaria [GC], no. 36760/06, § 241, ECHR 2012). 75. For the above-mentioned reasons, the Court considers that it has not been shown that the decision on the change of legal guardian was based on relevant and sufficient reasons and was thus proportionate to the legitimate aim pursued. 76. There has accordingly been a violation of Article 8 in that regard. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 77. The applicant raised several complaints under Article 6 of the Convention concerning both the proceedings leading to his legal incapacitation and those for the change of his legal guardian. 78. Lastly, he complained that he had been discriminated against on the grounds of his health – notably his mental illness – and social status, in the proceedings in which he had been divested of his legal capacity. He relied on Article 14 of the Convention, taken together with Article 8. 79. Bearing in mind the nature and substance of the violations found in the present case on the basis of Article 8 (see paragraphs 66 and 76 above), the Court finds that it is not necessary to examine separately the admissibility and merits of the complaints under Articles 6 and 14 of the Convention (see, mutatis mutandis, Ivinović v. Croatia, no. 13006/13, § 50, 18 September 2014, and Shtukaturov, § 134, cited above). APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTIONArticle 46 of the Convention Article 46 of the Convention Article 46 of the Convention 80. Article 46 of the Convention provides: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 81. The applicant requested that the Court indicate general measures to the respondent State, specifically to carry out urgent reform with a view to ensuring that persons with psychosocial disabilities benefit from special protection under the law in line with the international standards. 82. The Court reiterates that under Article 46 of the Convention the Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. The Court also reiterates that it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see N. v. Romania, cited above, § 215, with further references). 83. However, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see, for instance, Stanev, cited above, § 255, with further references). 84. In the present case, the Court is of the view that the shortcomings identified are liable to give rise to further justified applications in the future. For this reason, in the light of its finding of a violation of Article 8 of the Convention (see paragraph 66 above), and regard being had to the Constitutional Court’s findings in its decision of 16 July 2020 (see paragraph 31 above), the Court finds it crucial that the respondent State adopt the appropriate general measures with a view to bringing its legislation and practice into line with those findings of the Constitutional Court and with the international standards, including the Court’s case ‑ law, in the matter. Article 41 of the Convention 85. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 86. The applicant claimed 15,000 euros (EUR) in respect of non ‑ pecuniary damage. 87. The Government considered the claim to be unrelated to the alleged violation and excessive, and argued that the finding of a violation should constitute sufficient just satisfaction. 88. The Court considers that the applicant must have sustained non‑pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found and making its assessment on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage. 89. If, at the moment of payment of the award, the applicant is legally incapacitated, the Government should ensure that the amount awarded is transferred to the legal guardian, on the applicant’s behalf and in his best interests (see Lashin v. Russia, no. 33117/02, § 129, 22 January 2013). Costs and expenses 90. The applicant also claimed EUR 9,480 for the costs and expenses incurred before the Court, to be paid directly into his representative’s bank account. 91. The Government contested the claims and argued that the costs claimed in respect of legal representation before the Court were excessive. 92. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 9,480 for the proceedings before the Court, plus any tax that may be chargeable to the applicant. This sum is to be paid directly into the applicant’s representative’s bank account (see, for instance, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, ECHR 2016 (extracts)). Default interest 93. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention in respect of the applicant being divested of his legal capacity. It also held that there had been a violation of Article 8 in respect of the change of his legal guardian16. The Court found in particular that the legal provisions meant that the applicant’s actual needs and wishes could not be factored into the decision making process and the measure divesting him of his legal capacity could not be tailored to suit his situation. As a result, his rights under Article 8 had been restricted by law more than was strictly necessary. In addition, the Court considered that the decision-making process for the applicant’s change of legal guardian had not been accompanied by adequate safeguards. The applicant had been excluded from the proceedings for the sole reason that he had been placed under guardianship. No consideration had been given to his capacity to understand the matter and express his preferences. Moreover, the reason for the change was insufficient and the decision was disproportionate. Lastly, under Article 46 (binding force and execution of judgments) of the Convention, the Court was of the view that the shortcomings identified in this judgment were liable to give rise to further justified applications in the future. For this reason, it found it crucial that the Romanian State adopt the appropriate general measures with a view to bringing its legislation and practice into line with the the international standards, including the Court’s case law, in the matter. |
163 | Sterilisation operations | II. RELEVANT DOMESTIC LAW A. Code of Civil Procedure 28. Article 3 guarantees to everyone the right to seek judicial protection of a right which has been placed in jeopardy or violated. 29. Under Article 6, courts shall proceed with a case in cooperation with the parties in a manner permitting the speedy and efficient protection of persons ’ rights. 30. Article 78 § 1 provides that, prior to starting proceedings on the merits, courts can secure evidence on the proposal of the person concerned where it is feared that it will be impossible to take such evidence later. 31. Article 79 § 2 obliges a plaintiff to submit the documentary evidence relied upon in an action, with the exception of evidence which the plaintiff is unable to submit for external reasons. 32. Pursuant to Article 120 § 1, parties are obliged to produce evidence in support of their arguments. The decision as to which evidence will be taken lies with the court. Exceptionally, courts can take other evidence than that proposed by the parties where it is necessary for the determination of the point in issue. B. Health Care Act 1994 33. Until 31 December 2004, the following provisions of Health Care Act 277/1994 ( Zákon o zdravotnej starostlivosti – “the Health Care Act 1994”) were in force: “Section 16 – Medical records 1. The keeping of medical records shall form an inseparable part of health care. 2. All medical institutions ... shall be obliged to keep medical records in written form ... The documents are to be dated, signed by the person who established them, stamped and numbered on each page ... 3. Medical records shall be archived for a period of 50 years after the patient ’ s death. ... 5. A medical institution shall be obliged to provide medical records on a specific written request and free of charge, to a public prosecutor, investigator, police authority or court in the form of excerpts, to the extent that they are relevant in the context of criminal or civil proceedings. The medical records as a whole cannot be put at the disposal of the above authorities. 6. A patient, his or her legal representative ... shall have the right to consult medical records and to make excerpts thereof at the place [where the records are kept] ... 8. A medical institution shall provide an expert appointed by a court with information from medical records to the extent that it is necessary for preparing an expert opinion ... 11. An excerpt from a person ’ s medical record ... shall contain exact and true data and give an overview of the development of the health of the person concerned up to the date when the excerpt is established. It shall be established in writing on numbered pages.” 34. The relevant part of the Explanatory Report to the Health Care Act 1994 reads as follows: “Medical records remain the property of the medical institution concerned. They contain data about the patient and often also about the members of his or her family or other persons. That information being of a strictly confidential and intimate nature, the obligation of non-disclosure extends to them in their entirety. It is therefore necessary to define as precisely as possible cases where a patient or other persons may acquaint themselves with such information.” C. Health Care Act 2004 35. Law no. 576/2004 on health care and health care services and on the amendment and completion of certain Acts ( Zákon o zdravotnej starostlivosti, službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “the Health Care Act 2004”) came into force on 1 November 2004 and became operative on 1 January 2005. It repealed, inter alia, section 16 of the Health Care Act 1994. Its relevant provisions read as follows: “Section 25 – Access to data included in medical records 1. Data included in medical records shall be made available by means of consultation of the medical records to: (a) the person concerned or his or her legal representative, without any restriction; ... (c) any person authorised in writing by the person mentioned in point (a) ... subject to the signature of the latter being certified in accordance with a special law ... to the extent that it is specified in the authorisation; ... (g) an expert appointed by a court or an authority in charge of a criminal case or whom one of the parties has asked for an opinion ...; the extent of data necessary for preparing the opinion shall be determined by the expert ... 2. The persons entitled to consult medical records shall have the right to make excerpts or copies of them at the place where the records are kept to the extent indicated in paragraph 1.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 37. The applicants complained that they had been unable to obtain photocopies of their medical records under the Health Care Act 1994. They relied on Article 8 of the Convention, which in its relevant part provides: “1. Everyone has the right to respect for his private and family life, .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Arguments of the parties 1. The applicants 38. The applicants maintained that the mere possibility of consulting the files and making handwritten excerpts thereof did not provide them with effective access to the relevant documents concerning their health. In particular, medical records contained charts, graphs, drawings and other data which could not be properly reproduced through handwritten notes. They were voluminous as a rule and their transcript by hand was not only insufficient but also time consuming and burdensome. 39. The originals of the records contained information which the applicants considered important from the point of view of their moral and physical integrity. In particular, the applicants feared that they had been subjected to an intervention affecting their reproductive status. The records would convey not only information about any such intervention, but also whether the applicants had given consent to it and in what circumstances. A typed or handwritten transcript of the records could not faithfully represent the particular features of the original records bearing, in some cases, the applicants ’ signatures. With photocopies of the records the applicants would not only be able to establish a basis for civil litigation but also to demonstrate to their families and communities, where appropriate, that their infertility was not a result of any deliberate action on their part. 40. Finally, the applicants saw no justification for the Government ’ s argument according to which submitting transcripts of the relevant parts of the medical documents to prosecuting authorities or courts protected their privacy to a greater extent than making copies of the relevant files available. 2. The Government 41. The Government argued that the refusal to allow the applicants to make photocopies of their medical files had been in accordance with the relevant provisions of the Health Care Act 1994. It had been compatible with the applicants ’ right to respect for their private and family life in the circumstances. In particular, the applicants had been allowed to study all the records and to make handwritten excerpts thereof. 42. The refusal to allow the applicants to photocopy their medical records had been justified, at the relevant time, by the State ’ s obligation to protect the relevant information from abuse. The State enjoyed a margin of appreciation in regulating similar issues. It had not been overstepped in the case of the applicants, who had not been prevented from obtaining all relevant information related to their health. The Contracting States ’ positive obligations under Article 8 did not extend to an obligation to allow persons to make photocopies of their medical records. 43. Under the relevant law health institutions were obliged, upon a written request, to provide relevant information contained in the medical records of the person making the request, in the form of written excerpts, to police investigators, prosecutors or a court. That procedure provided the advantage that, unlike a copy of the medical file, it gave access to the relevant parts of the files without disclosing other information which was not related to the subject-matter of the proceedings. B. The Court ’ s assessment 44. The complaint in issue concerns the exercise by the applicants of their right of effective access to information concerning their health and reproductive status. As such it is linked to their private and family lives within the meaning of Article 8 (see, mutatis mutandis, Roche v. the United Kingdom [GC], no. 32555/96, § 155, ECHR 2005 ‑ X, with further reference). 45. The Court reiterates that, in addition to the primarily negative undertakings in Article 8 of the Convention, there may be positive obligations inherent in effective respect for one ’ s private life. In determining whether or not such a positive obligation exists, it will have regard to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance (see, for example, Gaskin v. the United Kingdom, 7 July 1989, § 42, Series A no. 160 ). 46. The existence of such a positive obligation was established by the Court, among other circumstances, where applicants sought access to information about risks to one ’ s health and well-being resulting from environmental pollution ( Guerra and Others v. Italy, 19 February 1998, § 60, Reports 1998 ‑ I ), information which would permit them to assess any risk resulting from their participation in nuclear tests ( McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III ) or tests involving exposure to toxic chemicals ( Roche v. the United Kingdom [GC], referred to above). The Court held, in particular, that a positive obligation arose to provide an “effective and accessible procedure” enabling the applicants to have access to “all relevant and appropriate information” (see, for example, Roche v. the United Kingdom [GC] cited above, § 162, with further references). Similarly, such a positive obligation was found to exist where applicants sought access to information to social service records containing information about their childhood and personal history (see Gaskin v. the United Kingdom, cited above and M.G. v. the United Kingdom, no. 39393/98, § 31, 24 September 2002 ). 47. Bearing in mind that the exercise of the right under Article 8 to respect for one ’ s private and family life must be practical and effective (see, for example, Phinikaridou v. Cyprus, no. 23890/02, § 64, ECHR 2007 ‑ ... (extracts), with further reference), the Court takes the view that such positive obligations should extend, in particular in cases like the present one where personal data are concerned, to the making available to the data subject of copies of his or her data files. 48. It can be accepted that it is for the file holder to determine the arrangements for copying personal data files and whether the cost thereof should be borne by the data subject. However, the Court does not consider that data subjects should be obliged to specifically justify a request to be provided with a copy of their personal data files. It is rather for the authorities to show that there are compelling reasons for refusing this facility. 49. The applicants in the present case obtained judicial orders permitting them to consult their medical records in their entirety, but they were not allowed to make copies of them under the Health Care Act 1994. The point to be determined by the Court is whether in that respect the authorities of the respondent State complied with their positive obligation and, in particular, whether the reasons invoked for such a refusal were sufficiently compelling to outweigh the Article 8 right of the applicants to obtain copies of their medical records. 50. Although it was not for the applicants to justify the requests for copies of their own medical files (see paragraph 48 above), the Court would nevertheless underline that the applicants considered that the possibility of obtaining exclusively handwritten excerpts of the medical files did not provide them with effective access to the relevant documents concerning their health. The original records, which could not be reproduced manually, contained information which the applicants considered important from the point of view of their moral and physical integrity as they suspected that they had been subjected to an intervention affecting their reproductive status. 51. The Court also observes that the applicants considered it necessary to have all the documentation in the form of photocopies so that an independent expert, possibly abroad, could examine them, and also in order to safeguard against the possible inadvertent destruction of the originals are of relevance. As to the latter point, it cannot be overlooked that the medical file of one of the applicants had actually been lost (see paragraph 2 7 above). 52. The national courts mainly justified the prohibition on making copies of medical records by the need to protect the relevant information from abuse. The Government relied on the Contracting States ’ margin of appreciation in similar matters and considered that the Slovak authorities had complied with their obligations under Article 8 by allowing the applicants or their representatives to study all the records and to make handwritten excerpts thereof. 53. The arguments put forward by the domestic courts and the Government are not sufficiently compelling, with due regard to the aims set out in the second paragraph of Article 8, to outweigh the applicants ’ right to obtain copies of their medical records. 54. In particular, the Court does not see how the applicants, who had in any event been given access to the entirety of their medical files, could abuse information concerning their own persons by making photocopies of the relevant documents. 55. As to the argument relating to possible abuse of the information by third persons, the Court has previously found that protection of medical data is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention and that respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention (see I. v. Finland, no. 20511/03, § 38, 17 July 2008 ). 56. However, the risk of such abuse could have been prevented by means other than denying copies of the files to the applicants. For example, communication or disclosure of personal health data that may be inconsistent with the guarantees in Article 8 of the Convention can be prevented by means such as incorporation in domestic law of appropriate safeguards with a view to strictly limiting the circumstances under which such data can be disclosed and the scope of persons entitled to accede to the files (see also Z v. Finland, judgment of 25 February 1997, Reports 1997-I, §§ 95-96). 57. The fact that the Health Care Act 2004 repealed the relevant provision of the Health Care Act 1994 and explicitly provides for the possibility for patients or persons authorised by them to make copies of medical records is in line with the above conclusion. That legislative change, although welcomed, cannot affect the position in the case under consideration. 58. There has therefore been a failure to fulfil the positive obligation to ensure effective respect for the applicants ’ private and family lives in breach of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 59. The applicants complained that their right of access to a court had been violated as a result of the refusal to provide them with copies of their medical records. They relied on Article 6 § 1 of the Convention, which in its relevant part provides: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...” 60. The applicants argued that they had been barred from having effective access to their medical records and from securing the evidence included in those records by means of photocopies. Having copies of the files was important for later civil litigation concerning any possible claims for damages on their part and for compliance with the burden of proof, which would be incumbent on the applicants as plaintiffs. 61. Obtaining copies of the medical records was essential for an assessment, with the assistance of independent medical experts of the applicants ’ choice, of the position in their cases and of the prospects of success of any future civil actions. The latter element was important because the applicants, who were living on social benefits, would be ordered to reimburse the other party ’ s costs if the courts dismissed their action. 62. The applicants considered that they could not obtain redress by means of asking a court under Article 78 of the Code of Civil Procedure to secure the files as evidence in the proceedings. They relied on section 16(5) of the Health Care Act 1994, which allowed courts to receive information from medical records exclusively in the form of excerpts but not the records as such or their copies. The domestic courts were thus unable to directly check any inconsistency in the applicants ’ medical records. 63. The Government referred to the conclusions reached by the Constitutional Court on 8 December 2004. Consulting and making excerpts from the medical documents had provided the applicants with a sufficient opportunity to assess the position in their cases and initiate civil proceedings if appropriate. The relevant provisions of the Code of Civil Procedure included guarantees for the applicants to be able effectively to seek redress before the courts in respect of any infringement of their rights which they might establish during the consultation of their medical records. The use of excerpts of the files had the advantage of protecting confidential information and personal data which had no bearing on the litigation in issue. 64. The Court reiterates that the right of access to a court is an inherent aspect of the safeguards enshrined in Article 6. It secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court. Where the individual ’ s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93). 65. The Court accepts the applicants ’ argument that they had been in a state of uncertainty as regards their health and reproductive status following their treatment in the two hospitals concerned and that obtaining the relevant evidence, in particular in the form of photocopies, was essential for an assessment of the position in their cases from the perspective of effectively seeking redress before the courts in respect of any shortcomings in their medical treatment. 66. The protection of a person ’ s rights under Article 6 requires, in the Court ’ s view, that the guarantees of that provision should extend to a situation where, like the applicants in the present case, a person has, in principle, a civil claim but considers that the evidential situation resulting from the legal provisions in force prevents him or her from effectively seeking redress before a court or renders the seeking of such judicial protection difficult without appropriate justification. 67. It is true that the statutory bar at the material time on the making available of copies of the records did not entirely bar the applicants from bringing a civil action on the basis of information obtained in the course of the consultation of their files. However, the Court considers that section 16(6) of the Health Care Act 1994 imposed a disproportionate limitation on their ability to present their cases to a court in an effective manner. It is relevant in this respect that the applicants considered the original form of the records, which could not be reproduced manually and which, in accordance with the above-cited provision, could not be made available to either the applicants or the courts (compare and contrast in this connection the McGinley and Egan case (cited above, § 90)), decisive for the determination of their cases. 68. When examining the facts of the case under Article 8 of the Convention the Court has found no sufficiently strong justification for preventing the applicants from obtaining copies of their medical records. For similar reasons, that restriction cannot be considered compatible with an effective exercise by the applicants of their right of access to a court. 69. There has therefore been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 70. The applicants complained that they had no effective remedy at their disposal in respect of their above complaints under Article 8 and Article 6 § 1 of the Convention. They alleged a violation of Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 71. The Government argued that the applicants had at their disposal an effective remedy, namely a complaint under Article 127 of the Constitution. A. Alleged violation of Article 13 in conjunction with Article 8 72. The Court recalls that Article 13 does not guarantee a remedy whereby a law as such can be challenged before a domestic organ (see M.A. and 34 Others v. Finland ( dec .), no. 7793/95, 10 June 2003). It follows from the terms of the applicants ’ submissions that it is basically the legislation as such which they attack. However, as stated above, Article 13 does not guarantee a remedy for such complaints. In these circumstances, the Court concludes that there has been no violation of Article 13 taken together with Article 8 of the Convention. B. Alleged violation of Article 13 in conjunction with Article 6 § 1 73. In view of its conclusion in relation to Article 6 § 1 (see paragraph 69 above), the Court does not consider it necessary to examine separately the complaint in relation to Article 13, the requirements of which are less strict than and absorbed by those of Article 6 § 1 in this case (see also McGinley and Egan v. the United Kingdom referred to above, § 106). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 74. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 75. The eight applicants claimed 15,000 euros (EUR) each in respect of non-pecuniary damage. They submitted that they had been unable to obtain photocopies of their medical records for three years, as a result of which they had experienced anxiety about the state of their health and reproductive abilities. Their personal lives had been thereby affected. 76. The Government considered that claim to be excessive. 77. The Court accepts that the applicants suffered non-pecuniary damage which cannot be remedied by the mere finding of a violation. Making its assessment on an equitable basis, the Court therefore awards each of the eight applicants EUR 3, 5 00 in respect of non-pecuniary damage. B. Costs and expenses 78. The applicants claimed EUR 6,042 for their representation in the domestic proceedings by Mrs V. Durbáková and the Centre for Civil and Human Rights in Košice. They claimed a total of EUR 11,600 in respect of the proceedings before the Court. Finally, the applicants claimed EUR 812 in respect of the administrative costs of their legal representatives (preparation of legal documents, photocopying, telephone calls, sending of faxes and postage) and EUR 1,127.50 for translation of documents and expenses incurred in correspondence with the Court. 79. The Government considered that the claims relating to the applicants ’ representation and the administrative costs were overstated. They had no objection to the sums claimed in respect of translation costs and international postage. 80. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Rule 60 and, among other authorities, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI; Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002; and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 - VIII). 81. Having regard to the documents submitted, the number of applicants, the scope of the proceedings at both national level and before the Court and the fact that the applicants were only partly successful in the Convention proceedings, the Court awards the applicants a total of EUR 8,000 in respect of costs and expenses, together with any tax that may be chargeable to the applicants. C. Default interest 82. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court found that the impossibility for the applicants to obtain photocopies of their medical records was in violation of Articles 8 (right to respect for private and family life) and 6 § 1 (access to court) of the Convention. |
626 | Associations, non governmental organisations, a.s.o. | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND DOCUMENTS 14. The relevant part of Part One, Chapter One of the Swiss Civil Code, as in force at the material time, reads as follows: Article 28 “Any person whose personality rights are unlawfully infringed may petition the court for protection against all those causing the infringement. An infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law.” Article 28a “The applicant may ask the court: 1. to prohibit a threatened infringement; 2. to order that an existing infringement cease; 3. to make a declaration that an infringement is unlawful if it continues to have an offensive effect. In particular, the applicant may request that a rectification or court judgment be notified to third parties or published. Claims for damages and satisfaction or for the handing over of profits are reserved, in accordance with the provisions which govern agency without authority.” 15. The relevant part of the Swiss Criminal Code, as in force at the material time, reads as follows: Article 261 bis Racial discrimination “Any person who publicly incites hatred or discrimination against a person or a group of persons on the grounds of their race, ethnic origin or religion, any person who publicly disseminates ideologies that have as their object the systematic denigration or defamation of the members of a race, ethnic group or religion, any person who with the same objective organises, encourages or participates in propaganda campaigns, any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of those grounds denies, trivialises or seeks a justification for genocide or other crimes against humanity, any person who refuses to provide a service to another on the grounds of that person ’ s race, ethnic origin or religion, when that service is intended to be provided to the general public, is liable to imprisonment of up to three years or to a fine .” 16. In October 2008, the Swiss Federal Commission against Racism issued an opinion on the initiative against the construction of minarets, the relevant part of which reads as follows: “The Federal Commission against racism recommends: 1. rejection of the initiative ‘ against the construction of minarets ’ ... The initiative against the construction of minarets ... ... discriminates against and defames Muslim men and women 1. The initiative and the arguments of those who support it equate to discrimination against Muslims. They are aimed at an outright ban on minarets, whereas Christians and members of other religions, such as Hindus, Buddhists and others, are not subject to a similar prohibition. 2. The initiative against the construction of minarets spreads and reinforces negative stereotypes concerning Islam and thereby defames Muslims. The minaret thereby becomes, in one sweeping judgment, the symbol of a will to power which, according to the supporters of the initiative, calls into question fundamental rights guaranteed by the Constitution, for instance gender equality. The text suggests that part of a religious building is a risk to society. All Muslims are therefore criticised for dishonest and even unlawful behaviour. However, such reproaches are contradicted by the facts. The initiative against the construction of minarets ... ... breaches fundamental and human rights 3. The intitiative violates the freedom of religion guaranteed by human rights and the liberty of conscience and faith guaranteed by the Federal Constitution (Article 15). A prohibition on constructing minarets limits the rights of Muslims to practise their religion alone and in community with others. No public interest justifies such a restriction .... The initiative against the construction of minarets ... ... fuels fear and creates insecurity 6. The initiative fuels fear among members of the majority population and among minorities. Muslims are and feel limited in exercising their rights. There will be a greater feeling of insecurity in Muslim communities because they will wonder about the extent of the restrictions. Moreover, the supporters [of the initiative] fuel fears by talking about ‘ rampant Islamisation ’ which represents a danger for the country. They completely ignore the fact that in Switzerland there is no serious problem of the integration of Muslims as far it concerns the practice of their religion. The initiative against the construction of minarets ... ... is an obstacle to integration 7. Spreading stereotypes encourages discrimination on an everyday basis. Young people looking for a place to learn are pushed to the sidelines if they have a name that makes people think they are Muslims because of a fear they will cause problems. Muslims are insulted in public or excluded by their neighbours, who fear them. Repeated instances of discrimination make young people less disposed to integrate ... ” 17. The website of the Swiss Federal Commission against Racism has a “Definition of Racism”, which reads as follows: “ Despite numerous studies on the subject, to date there is no universally accepted definition of racism. The one used most frequently is that of the French sociologist Albert Memmi: ‘ Racism is a generalising definition and evaluation of differences, whether real or imaginary, to the advantage of the one defining or deploying them, to the detriment of the one subjected to the act of definition, whose purpose is to justify hostility or privilege. ’ ... In addition to this strict definition of the term, which particularly applies to classic pseudo-biological racism, there is also racism in the wider sense, which relies on cultural, psychological, social or metaphysical arguments. ... ” 18. In its General Policy Recommendation No. 7, adopted on 13 December 2012, the European Commission against Racism and Intolerance (ECRI) gave the following definition of racism : “ ‘ Racism ’ shall mean the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons ... .” The relevant part of the Explanatory Memorandum to ECRI ’ s General Policy Recommendation No. 7 stated as follows: “6. In the Recommendation, the term ‘ racism ’ should be understood in a broad sense, including phenomena such as xenophobia, antisemitism and intolerance. As regards the grounds set out in the definitions of racism ..., in addition to those grounds generally covered by the relevant legal instruments in the field of combating racism and racial discrimination, such as race, colour and national or ethnic origin, the Recommendation covers language, religion and nationality. The inclusion of these grounds ... is based on ECRI ’ s mandate, which is to combat racism, antisemitism, xenophobia and intolerance. ECRI considers that these concepts, which vary over time, nowadays cover manifestations targeting persons or groups of persons, on grounds such as race, colour, religion, language, nationality and national and ethnic origin. As a result, the expressions ‘ racism ’ and ‘ racial discrimination ’ used in the Recommendation encompass all the phenomena covered by ECRI ’ s mandate.” 19. The relevant parts of ECRI ’ s Fourth report on Switzerland (CRI (2009) 32), published on 15 September 2009, read as follows: “ III. Racism in political discourse ... 88. ECRI is deeply concerned at the changes in the tone of political discourse in Switzerland since the publication of its previous report. These changes are very closely linked to the growth of the UDC party ( Union démocratique du centre/SVP Schweizerische Volkspartei ). In the latest parliamentary elections at federal level, the UDC obtained the highest score: 29% of the votes. With 62 elected members of the National Council – the second chamber of parliament – (55 during the 2003 parliamentary term), the UDC now occupies a significant position in Swiss politics. This party alone has made “foreigners” its key issue. The programme, positions, campaigns, posters and other material produced by the party are described by all anti ‑ racism experts as xenophobic and racist .... 94. ECRI is pleased to note that the federal authorities regularly and openly oppose various parliamentary motions and requests for referenda launched or supported by the UDC, explaining that they infringe or are likely to infringe human rights, as in the case of the request for a referendum intended to ban the construction of minarets. The Swiss people themselves, although 29% voted for this party, reject some of its more extreme positions in referenda. The Federal Commission against Racism, the Federal Commission for Migration Issues and other bodies constantly warn the general public about this threat to the country ’ s social cohesion. 95. ECRI reiterates that unrestrained racist and xenophobic political discourse inevitably leads to a range of serious consequences – some of which can already be observed in Switzerland – including ill-conceived proposals which could disproportionately affect particular groups or their capacity for exercising their human rights in practice. Such discourse risks the undermining of social cohesion and an incitement to racial discrimination and racist violence .... THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 21. The applicant organisation complained that the domestic court ’ s finding of an infringement of B.K. ’ s personality rights had violated its right to freedom of expression, as guaranteed in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to ... impart information and ideas without interference by public authority ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...” A. Admissibility 22. The Government submitted that the applicant organisation had failed to exhaust the available domestic remedies as it had never expressly complained of a breach of its right to freedom of expression before the Federal Supreme Court. 23. The applicant organisation contested that argument. It had relied in its appeal to the Federal Supreme Court on its right to freedom of expression and reiterated that any interference with B.K. ’ s personality rights had been justified. Referring to its essential role as a public watchdog, the applicant organisation complained that the High Court ’ s decision had prevented it from fulfilling its task of informing the public according to its statutory purpose and its publicly acknowledged standing. In general, it had contended before the Federal Supreme Court that there had been a breach of its right to pursue its information activities and thus a violation of its right to freedom of expression. 24. The Court observes that the purpose of the rule on exhaustion of domestic remedies is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, and Remli v. France, 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II). 25. The rule on exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. At the same time, it requires, in principle, that the complaints intended to be made subsequently at international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014, and Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 84-87, 9 July 2015 ). 26. It is not necessary for the Convention right to be explicitly raised in domestic proceedings provided that the complaint is raised “at least in substance” ( see Fressoz and Roire v. France [GC], no. 29183/95, § 39, ECHR 1999-I, and Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III ). If the applicant has not relied on the provisions of the Convention, he or she must have raised arguments to the same or like effect on the basis of domestic law, in order to have given the national courts the opportunity to redress the alleged breach in the first place ( see Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010, and Karapanagiotou and Others v. Greece, no. 1571/08, § 29, 28 October 2010 ). 27. In the present case, the applicant organisation ’ s principal argument before the Federal Supreme Court was that the publication of a text which had put B.K. ’ s statements in the category of “verbal racism” had been wrongly classified by the second-instance court as an infringement of his personality rights. The Federal Supreme Court, for its part, acknowledged that the applicant had relied on matters relating to freedom of the press and reviewed the case from the aspect of freedom of expression. It further emphasised that the rights to freedom of expression and freedom of the press had to be taken into consideration when interpreting Article 28 of the Swiss Civil Code, which was relied on in the case before it. 28. In those circumstances, the Court is satisfied that through the arguments it raised before the Federal Supreme Court, the applicant organisation did complain, albeit only implicitly, about its right to freedom of expression. In doing so, it raised, at least in substance, a complaint under Article 10 of the Convention before the Federal Supreme Court and the court examined that complaint. It follows that the applicant provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them (see Muršić v. Croatia [GC], no. 7334/13, § 72, ECHR 2016 ). The Government ’ s objection concerning a failure to exhaust domestic remedies must therefore be dismissed. 29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 30. The applicant submitted that the Federal Supreme Court had wrongly found the expression “verbal racism” to be a mixed value judgment which required proof of veracity. In any event, considering the socio ‑ political context, the description of B.K. ’ s speech as an act of “verbal racism” could not be regarded as devoid of any factual basis. 31. The Federal Supreme Court found that because his statements were labelled as “verbal racism”, B.K was implicitly being accused of a criminal offence under Article 261 bis of the Swiss Criminal Code. However, in the applicant organisation ’ s view, the criminal offence of “racial discrimination” could not be equated with the term “racism”. The concept of racism was highly complex and often disputed and a brief reference by the Federal Supreme Court to a dictionary entry could not sufficiently explain its complexity. 32. The applicant organisation regularly wrote about racist incidents that did not fall within the meaning of a criminal offence. Its website clearly explained its wide understanding of the term “racism” and detailed the contents of the category “verbal racism” so that readers were well aware of what to expect. In the applicant organisation ’ s view, prohibiting the term “racism” from being used to describe certain kinds of behaviour or statements if they did not amount to a criminal offence within the meaning of Article 261 bis of the Criminal Code would be highly damaging to democratic society and in complete contradiction to various human rights standards. 33. In its role of “public watchdog”, the applicant organisation argued that it deserved the same protection as the press and that the margin of appreciation of the respondent State should therefore be restricted. Moreover, it had exercised the degree of discretion required from all journalistic publications in the impugned Internet entry and had refrained from provocation. 34. The applicant stressed that the initiative against the construction of minarets had given rise to heated discussions in Switzerland. In its view, there was no doubt that that political initiative had been racist and discriminatory. That view had been confirmed by a number of renowned experts and bodies, which had held that the initiative was “racist” in nature, or at least racist - related. 35. The applicant organisation further argued that B.K., in his role as a politician, had to accept that he was more likely to become the subject of criticism than the average person, irrespective of his young age. Rejecting the Government ’ s argument in that regard, the applicant organisation stated that B.K. was an adult and thus bore full responsibility for his political activities. 36. Finally, the court proceedings at issue had had a chilling effect on the applicant organisation, not least in view of the considerable court and lawyers ’ fees it had been ordered to pay. Such actions had de facto put an end to its public watchdog activities as it now had to fear further court action. If it had not complied with the court order to remove the impugned entry from its website, the applicant organisation would have faced a fine of up to 10,000 Swiss francs (CHF) (around 9, 200 euros (EUR) ). Such costs were a serious threat to the applicant ’ s right to freedom of expression, particularly in view of the fact that they could practically disable its functioning owing to its limited resources, which were earmarked for specific purposes. (b) The Government 37. The Government submitted that the classification of B.K. ’ s statements as an act of “verbal racism” had constituted a mixed value judgment, which had to have a factual basis. The Federal Supreme Court had relied on the sense generally attributed to the notion of racism and the perception of B.K. ’ s statements that an average person would have had. In that regard, the Federal Supreme Court had referred to the definition in the reference dictionary for the German language, according to which racism related to the superiority of certain races or peoples over others due to their cultural capacity and, on the other hand, a corresponding attitude or behaviour towards other people belonging to certain races or peoples. A simple mention of the differences between two individuals or groups could not be interpreted as racism. Racism began where such a difference at the same time involved belittlement of the victim and where the highlighting of such differences was used to present the victim in a negative light and to denigrate them. In the Government ’ s view, that definition corresponded to the one used by the Swiss Federal Commission Against Racism and the European Commission against Racism and Intolerance (ECRI). 38. The applicant organisation defined racism on its website and in the proceedings it had pointed out that the notion of racism had to be understood in a particularly wide sense so as to cover any grouping according to race, skin colour, origin, nationality, culture or religion. Nevertheless, the Government argued that in the context of the protection of reputation, the general sense attributed to the notion of racism had to be borne in mind, which implied in particular that the target group was of a lower value than one ’ s own group. In his speech B.K. had only compared his own culture, founded on Christianity, with other cultures, including Islam. He had defined both of them and had designated his own culture as worthy of protection. His statements had not contained racist words according to the generally accepted meaning of that term. Consequently, describing his statements as “verbal racism” had not had a factual basis. 39. The Government admitted that the applicant organisation could be described as a social “public watchdog” because of its objectives and area of work and that, consequently, it could benefit from the same protection as the press. They also agreed that B.K., as president of the local branch of a youth wing of a political party, having spoken publicly during a demonstration, had entered into the public arena and engaged in a political debate. Thus normally the limits of permitted criticism would need to be wider for him than for a private individual. Nevertheless, the Government argued that that principle had to be applied in a differentiated way because B.K. was only 21 years old at the time. He had been at the beginning of his political career and was unknown at national level. Those circumstances justified proper protection for his personality rights and reputation. 40. For the Government, even if it was accepted that both B.K. ’ s statements and the applicant organisation ’ s Internet entry had been part of a political debate on a question of general interest, the impugned publication had not been a statement in a political debate but had merely been an account of a public gathering that was essentially factual in character. Furthermore, the applicant organisation had presented B.K. ’ s statements on the part of its website entitled “Chronology”, which contained objective information rather than comments, thereby further increasing the factual component of its statement. The degree of exaggeration that was allowed in information of an essentially factual character was necessarily lower than that tolerated for ideas or opinions. The applicant ’ s responsibility to supply exact and trustworthy information also took on particular importance when it came to the publication of a chronology. It had had the opportunity to prove the truth of the impugned statement, but had failed to do so. 41. The Government maintained that describing someone ’ s words as “verbal racism” could generally decrease respect for that person and be associated by the average reader with an accusation of an offence punishable under criminal law. In the presence of words which equated to liability for criminal conduct, there had been a “pressing social need” to prevent people gaining the impression of such serious charges. 42. The sanctions against the applicant organisation had been of a civil nature and limited in scope. The ban on publishing the information in question on its website under the section “Chronology – Verbal racism” had not prevented the applicant organisation from publishing the information in question under another section or with another title. 43. In conclusion, there had been a pressing social need to take the impugned measure against the applicant organisation and the State had not overstepped the margin of appreciation it was afforded. 2. The Court ’ s assessment ( a) Whether there was an interference 44. It is not in dispute between the parties that the domestic courts ’ finding against the applicant organisation constituted an interference with its right to freedom of expression. Such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10. The Court must therefore determine whether the interference was “prescribed by law”, pursued one or more of the legitimate aims listed in that paragraph and was “necessary in a democratic society” in order to achieve the aim sought. ( b) Whether it was prescribed by law 45. The applicant argued that Article 28 of the Swiss Civil Code had lacked foreseeability in view of its general lack of unspecific wording. According to the Government, the impugned measures had a sufficient legal basis in Swiss law. 46. The Court accepts that the interference in the present case was based on Article 28 of the Swiss Civil Code (see paragraph 14 above) and that that provision was accessible. The parties ’ views, however, diverge on its foreseeability. The Court must thus examine whether the provisions in question fulfill the foreseeability requirements. 47. A norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable individuals to regulate their conduct: they must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may entail excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are a question of practice (see Karácsony and Others v. Hungary [GC], no. 42461/13, § 124, ECHR 2016 (extracts), and Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015 ). 48. Turning to the present case, the Court finds no ambiguity in the content of the provisions of domestic law relied on by the national courts. As the Government submitted, the said provision has been in force since 1985 and the Federal Supreme Court has developed ample jurisprudence in relation to it. What is more, Article 28a of the Civil Code enumerates the possible measures that a court can take if it finds that there has been an unlawful infringement of an individual ’ s personality rights. While it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Korbely v. Hungary [GC], no. 9174/02, §§ 72-73, ECHR 2008; and Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999 ‑ I), the Court finds nothing to suggest that the applicant organisation was not in a position to foresee, to a reasonable degree, the national appellate court ’ s interpretation and application of Article 28 of the Civil Code to its case. 49. The Court therefore concludes that the impugned interference was “prescribed by law”. ( c) Whether there was a legitimate aim 50. The Court finds that the interference pursued one of the legitimate aims set out in paragraph 2 of Article 10, namely the protection of the reputation and rights of others. ( d) Whether it was necessary in a democratic society (i) General principles 51. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfillment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” ( see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Lindon, Otchakovsky- Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007- IV; and Perinçek v. Switzerland [GC], no. 27510/08, § 196, 15 October 2015). 52. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” or “penalty” is reconcilable with freedom of expression as protected by Article 10. 53. The Court ’ s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the “interference” complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see, among others, Mamère v. France, no. 12697/03, § 19, ECHR 2006 ‑ XIII, and Lindon, Otchakovsky-Laurens and July, cited above, § 45). 54. The Court further recalls that the right to protection of reputation is protected by Article 8 of the Convention as part of the right to respect for private life. In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 76, ECHR 2017 ). When examining the necessity of an interference in a democratic society in cases where the interests of the “protection of the reputation or rights of others” bring Article 8 into play, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG v. Germany [GC], no. 39954/08, § 84, 7 February 2012 ). 55. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, 10 November 2015). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011). 56. The Court has already had occasion to lay down the relevant principles which must guide its assessment in this area. It has thus identified a number of criteria which may come into play in the context of balancing the competing rights (see Couderc and Hachette Filipacchi Associés, cited above, § 93 ). The relevant criteria thus defined include: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, and the content, form and consequences of the publication. 57. Lastly, the Court has previously accepted that when an NGO draws attention to matters of public interest, it is exercising a “public watchdog” role of similar importance to that of the press (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 103, ECHR 2013 (extracts)) and may be characterised as a social “watchdog” warranting similar protection under the Convention as that afforded to the press (ibid., and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 166, 8 November 2016). (ii) Application of the general principles in the present case 58. The Court notes that the present case concerns a conflict of concurring rights, namely, on the one hand, respect for B.K. ’ s right to respect for his private life and freedom of expression and, on the other, the applicant organisation ’ s right to freedom of expression. 59. Where national jurisdictions have carried out a balancing exercise in relation to those rights, the Court has to examine whether, during their assessment, they applied the criteria established in its jurisprudence on the subject ( see Axel Springer AG, cited above, § 88) and whether the reasons that led them to take the impugned decisions were sufficient and relevant to justify the interference with the right to freedom of expression ( see Cicad v. Switzerland, no. 17676/09, § 52, 7 June 2016 ). It will do so by examining the criteria established in it case-law (see paragraph 56 above) which are of relevance to the present case. ( ɑ) Contribution to a debate of public interest 60. When assessing the impugned statements in the present case, it is first of all important to bear in mind the general background of the ongoing political debate in which both statements were made. 61. Both B.K. ’ s speech and the applicant organisation ’ s article concerned a topic of intense public debate in Switzerland at the material time, which was the popular initiative against the construction of minarets, which was widely reported on in national and international media. The initiative, calling for a ban on the construction of minarets, was ultimately accepted by a referendum on 29 November 2009 and such a ban was included in the Swiss Constitution. ( β) How well-known is the person concerned and the subject of the report 62. The Court reiterates that a distinction has to be made between private individuals and persons acting in a public context, as political or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco v. Moldova, no. 20928/05, § 55, 30 March 2010). For them, the limits of critical comment are wider as they are inevitably and knowingly exposed to public scrutiny and must therefore display a particularly high degree of tolerance (see Ayhan Erdoğan v. Turkey, no. 39656/03, § 25, 13 January 2009, and Kuliś v. Poland, no. 15601/02, § 47, 18 March 2008). 63. The Government argued that that principle had to be applied in a different way in the present case because B.K. was only 21 at the time he gave the critical speech. He was at the beginning of his political career and was unknown at national level. Those circumstances justified a proper level of protection for his personality rights and reputation. 64. The Court does not share the Government ’ s view in this respect. B.K. had been elected president of a local branch of the youth wing of a major political party in Switzerland. The speech cited by the applicant organisation was clearly political and was made in the framework of support for his party ’ s political goals, which at that time were to promote the popular initiative against the construction of minarets. 65. Consequently, B.K. had willingly exposed himself to public scrutiny by stating his political views and therefore had to show a higher degree of tolerance towards potential criticism of his statements by persons or organisations which did not share his views. ( γ) Content, form and consequences of the publication 66. In the present case the applicant reproduced B.K. ’ s speech, which had already been published on the political party ’ s own website, but called it “verbal racism”. 67. The Federal Supreme Court held that classifying B.K. ’ s speech as “verbal racism ” had been a mixed value judgment which had had no factual basis because the speech had not been racist. In particular, the Federal Supreme Court held that for the average reader B.K. ’ s statements did not come across as belittling Muslims, but were merely defending Christianity as the Swiss guiding culture (“ schweizerische Leitkultur ”; see paragraph 13 above ). 68. At this point the Court reiterates that a distinction needs to be made between statements of fact and value judgments in that, while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see, for example, Lingens v. Austria, 8 July 1986, § 46, Series A no. 103, and Prager and Oberschlick v. Austria (no. 1), 23 May 1991, § 63, Series A no. 204). The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts (see Prager and Oberschlick, cited above, § 36). However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there existed a sufficient “factual basis” for the impugned statement: if there was not, that value judgment may prove excessive ( see Morice v. France [GC], no. 29369/10, § 126, 23 April 2015 ). In order to distinguish between a factual allegation and a value judgment it is necessary to take account of the circumstances of the case and the general tone of the remarks, bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Paturel v. France, no. 54968/00, § 37, 22 December 2005 ). 69. Turning to the present case, the Court considers that the applicant ’ s classification of B.K. ’ s speech as “verbal racism ” constituted a value judgment as it contained the applicant ’ s organisation ’ s own comment on B.K. ’ s statements. What the Court has to establish is whether such a comment could be said to have had a sufficient factual basis, bearing in mind the general background of the ongoing political debate in which the statement was made ( see paragraph 61 above). 70. In the present case, it is not the Court ’ s task to settle the question of the definition of racism, which seems to have been in dispute between the applicant and the respondent in the domestic proceedings. The Court takes note of the Federal Supreme Court ’ s conclusion, which was that merely pointing out a difference between two individuals or groups could not be interpreted as racism (see paragraph 13 above). At the same time, it is mindful of the definitions of racism by ECRI and the Swiss Federal Commission against Racism (see paragraphs 18 and 17 above). 71. The Court also attaches importance to the documents from various specialised national and international bodies on the matter. The tone taken in the political discourse of the supporters of the initiative in question was described in ECRI ’ s 2009 report on Switzerland as one that “ largely contributes to the stigmatisation [of Muslims] and to the reinforcement of racist prejudice and discrimination against them by members of the majority community” (see paragraph 19 above). Likewise, the Swiss Federal Commission Against Racism noted in its recommendations that the initiative defamed and discriminated against Muslim men and women (see paragraph 16 above). Furthermore, in 2014 the UN Committee on the Elimination of Racial Discrimination reported on the initiative in its concluding observations under the title “Racism and xenophobia in politics and the media” (see paragraph 20 above). 72. Moreover, as observed by the Federal Supreme Court, B.K ’ s speech implied that the “ Swiss guiding culture ” was “worthy of protection and defence” against the expansion of Islam (see paragraph 13 above). In the Court ’ s view, this in itself would suggest that the latter was something negative from which the former needed protection and that B.K. ’ s speech was thus not merely limited to the “ demonstration of a difference”. 73. For the foregoing reasons, the Court considers that it cannot be said that classifying B.K. ’ s speech as “verbal racism” when it supported an initiative which had already been described by various organisations as discriminatory, xenophobic or racist, could be regarded as devoid of any factual basis. 74. The Court further observes that the applicant never suggested that B.K. ’ s statements fell within the scope of the criminal offence of racial discrimination under Article 261 bis of the Swiss Criminal Code. In fact, in its arguments before the national authorities and the Court (see paragraph 32 above), the applicant organisation stressed the need to be able to describe an individual ’ s statement as racist without necessarily implying criminal liability. 75. What is more, in the Court ’ s view, the impugned description cannot be understood as a gratuitous personal attack on or insult to B.K. The applicant organisation did not refer to his private or family life, but to the manner in which his political speech had been perceived. As already stated, B.K., as a young politician expressing his view publicly on a very sensitive topic, must have known that his speech might cause a critical reaction among his political opponents. 76. In view of the foregoing, the impugned categorisation of B.K. ’ s statement as “ verbal racism ” on the applicant organisation ’ s website could hardly be said to have had harmful consequences for his private or professional life (see, a contrario, Cicad, cited above, § 56 ). ( δ) Severity of the sanction 77. Finally, the nature and severity of the sanction imposed on an applicant are also factors to be taken into account when assessing the proportionality of an interference. The domestic courts ordered the applicant organisation to remove the impugned article from its website and to publish the conclusion of the second-instance court. It also had to pay CHF 3, 33 5 plus tax in court fees and reimburse B.K. ’ s legal costs of CHF 3, 830 plus tax. 78. In the Court ’ s view, the above sanction, however mild, may have had a “chilling effect” on the exercise of the applicant organisation ’ s freedom of expression as it may have discouraged it from pursuing its statutory aims and criticising political statements and policies in the future (see, mutatis mutandis, Lewandowska-Malec v. Poland, no. 39660/07, § 70, 18 September 2012). ( ε ) Conclusion 79. In the light of all of the above-mentioned considerations, the Court considers that the arguments advanced by the Government with regard to the protection of B.K. ’ s personality rights, although relevant, cannot be regarded as sufficient to justify the interference at issue. In reviewing the circumstances submitted for their assessment, the domestic courts did not give due consideration to the principles and criteria laid down by the Court ’ s case-law for balancing the right to respect for private life and the right to freedom of expression (see paragraphs 55 and 56 above). They thus exceeded the margin of appreciation afforded to them and failed to strike a reasonable balance of proportionality between the measures restricting the applicant organisation ’ s right to freedom of expression and the legitimate aim pursued. 80. There has accordingly been a violation of Article 10 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 81. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 82. The applicant organisation claimed 5,000 euros (EUR) in respect of non-pecuniary damage. 83. The Government considered this claim excessive and submitted that the mere finding of a violation would suffice to cover any non ‑ pecuniary damage suffered by the applicant. 84. In view of the violation found, the Court awards the applicant the amount requested in full. B. Costs and expenses 85. The applicant organisation also claimed CHF 29,943.60 (approximately EUR 26,174.85 ) for costs and expenses, including legal representation, incurred before the domestic courts, and CHF 15,261.70 (approximately EUR 13,340.84 ) for costs and expenses incurred before the Court. The latter sum corresponds to approximately 47 hours of legal work billable by its lawyer at an hourly rate of CHF 300 plus postal and copying costs and tax. 86. The Government did not contest CHF 11 ,8 10.90 (approximately EUR 10,324.36 ) of the claim, which included the applicant ’ s costs for the domestic courts and the amount it was ordered to pay in respect of B.K. ’ s legal costs at the domestic level. However, they contested the applicant ’ s claims for its own legal representation in both the domestic and Court proceedings and proposed CHF 8 ,000 (approximately EUR 7,000 ) as appropriate compensation in that regard. 87. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 30 ,000 covering costs under all heads. C. Default interest 88. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that overall, in reviewing the circumstances submitted for their assessment, the Swiss courts had not given due consideration to the principles and criteria laid down by the Court’s case-law for balancing the right to respect for private life and the right to freedom of expression, thereby overstepping their room for manoeuvre (“margin of appreciation”). The Court noted in particular that the context of the debate at the time of the referendum – including other criticisms of the referendum itself by human rights bodies – meant that the organisation’s use of the words “verbal racism” had not been without factual foundation. The penalty imposed on the organisation might also have had a chilling effect on its freedom of expression. |
39 | Children’s education and parents’ religious convictions | THE LAW JOINDER OF THE APPLICATIONS 31. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATIONS OF ARTICLES 8 AND 9 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 1, READ IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 32. The first two applicants in application no. 4762/18 and the first applicant in application no. 6140/18 complained that they were obliged to submit a solemn declaration declaring that their daughters, the third applicant in application no. 4762/18 and the second applicant in application no. 6140/18, were not Orthodox Christians, in order for the latter to be exempted from the religious education course. They also complained that such declarations had to be kept with the school records and that the school principal had to enquire as to whether their content was true. They alleged that the third applicant in application no. 4762/18 and the second applicant in application no. 6140/18 had been victims of violations of Article 9 of the Convention taken in conjunction with Article 14. They also alleged that the requirement for them to solemnly declare that the third applicant in application no. 4762/18 and the second applicant in application no. 6140/18 were not Orthodox Christians in order to have them exempted from the religious education course and the retention of these declarations in the school archives constituted an unacceptable interference with their private life, as protected under Article 8 of the Convention. 33. The applicants also complained that in exercising its functions in matters of education and teaching, the State had not ensured that the information included in the religious education programme for the school year 2017/18 would be spread (a) in an objective, critical and pluralistic manner, in conformity with the first sentence of Article 2 of Protocol No. 1 with respect to the third applicant in application no. 4762/18 and to the second applicant in application no. 6140/18, and (b) in conformity with their parents’ religious and philosophical convictions (second sentence of Article 2). 34. The above-mentioned Articles read as follows: Article 8 “1. Everyone has the right to respect for his private life .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 9 "1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... religion ....” Article 2 of Protocol No. 1 “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” Preliminary remarks and method followed 35. The Court emphasises that, by its very nature, the substantive content of Article 9 of the Convention may sometimes overlap with the content of other provisions of the Convention; in other words, one and the same complaint submitted to the Court can sometimes come under more than one Article. In such cases, the Court usually opts to assess the complaint solely under the Article which it considers most relevant in the light of the specific circumstances of the case; however, in so doing, it also bears the other Article(s) in mind and interprets the Article which it has opted to consider in the light of the latter. 36. The Court has chosen to consider cases solely under Article 2 of Protocol No. 1, for example as regards the administration of compulsory classes in religious culture and morals in State schools, and the restricted opportunities for administering such classes (see Mansur Yalçın and Others v. Turkey, no. 21163/11, 16 September 2014), or a refusal to exempt a State school pupil whose family was of the Alevi faith from mandatory lessons in religion and morals (see Hasan and Elyem Zengin v. Turkey, no. 1448/04, 9 October 2007), or again a refusal by educational authorities to grant children complete exemption from compulsory classes on Christianity (see Folgerø and Others v. Norway [GC], no. 15472/02, ECHR 2007). 37. In the field of education and teaching, Article 2 of Protocol No. 1 is basically a lex specialis in relation to Article 9 of the Convention. This applies at least where, as in the present case, the issue at stake is the obligation on the Contracting States – as set out in the second sentence of this Article – to respect, in the exercise of any functions which they assume in relation to education and teaching, the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions (see Osmanoğlu and Kocabaş v. Switzerland, no. 29086/12, § 90, 10 January 2017, and Lautsi and Others v. Italy [GC], no. 30814/06, § 59, ECHR 2011). 38. The complaints in question in the present case should therefore be examined mainly from the standpoint of the second sentence of Article 2 of Protocol No. 1. 39. Nevertheless, that provision should be read in the light not only of the first sentence of the same Article, but also, in particular, of Article 9 of the Convention (see, for example, Folgerø, cited above, § 84), which guarantees freedom of thought, conscience and religion, including the freedom not to belong to a religion, and which imposes on Contracting States a “duty of neutrality and impartiality”. When read as it should be in the light of Article 9 of the Convention and the second sentence of Article 2 of Protocol No. 1, the first sentence of that provision guarantees schoolchildren the right to education in a form which respects their right to believe or not to believe ( Lautsi and Others v. Italy [GC], no. 30814/06, § 78, ECHR 2011). AdmissibilityNon-exhaustion of domestic remedies Non-exhaustion of domestic remedies Non-exhaustion of domestic remedies (a) Arguments of the parties 40. The Government alleged that the applicants had neither used nor exhausted domestic remedies. Firstly, they emphasised that the application for annulment of the two decisions of the Minister of Education, Research and Religious Affairs entitled “General and vocational high school religious education programme” and “Primary and middle school religious education programme”, filed by the applicants with the Supreme Administrative Court, was still pending. Secondly, they maintained that the applicants had failed to file: (i) an application to suspend enforcement of the above-mentioned ministerial decisions and for an interim injunction; (ii) an application for annulment of the circular of the Minister of Education dated 23 January 2015 regarding the procedure for exemption from the religious education course; (iii) an application for exemption on behalf of the third applicant in application no. 4762/18 and the second applicant in application no. 6140/18, which would result in the school principals actually verifying their declaration that the children were not Orthodox Christian; and (iv) an application for annulment of any rejection of such an application for exemption. 41. Lastly, the Government submitted that although the third applicant in application no. 4762/18 had known that her application, even if the Court were to find a violation of her human rights, could only lead to an award of just satisfaction for non-pecuniary damage, she had filed the application without giving the domestic courts the opportunity to decide such a claim, by bringing an action for damages under section 105 of the Introductory Law to the Civil Code. 42. The applicants submitted that the applications for annulment had been the only remedy available against the ministerial decisions in question and that the proceedings before the sole responsible State authority, the Supreme Administrative Court, had not constituted an effective remedy since the applications had not even led to a hearing before the start of the school year 2017/18. They also maintained that submitting an application to suspend enforcement and for an interim injunction was not part of the mandatory form of domestic remedies and there was no prior domestic case-law justifying such applications. They also argued that there had been no requirement, nor had it been feasible, to initially challenge the 2015 circular before challenging the 2017 ministerial decisions. 43. The applicants disputed the religious neutrality of the members of the Supreme Administrative Court. They maintained that it had not adjourned their case because another important case of the same type had already been pending before it. The previous case had concerned the curriculum for the year 2016/17. The real reason for adjourning the case had been to delay matters until the end of the school year 2017/18 and make the applicants lose their standing as the third applicant in application no. 4762/18 had been in the final grade of the public education system. 44. As regards an action for damages under the above-mentioned section 105, the third applicant in application no. 4762/18 maintained that she had chosen the most appropriate legal remedy – an application for annulment before the Supreme Administrative Court – which had not concealed a “self-serving” objective, as the only result would have been the annulment of the ministerial decisions and not an award of damages. (b) The Court’s assessment 45. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after the exhaustion of those domestic remedies that relate to the breaches alleged and are also available and sufficient. The Court also reiterates that it is incumbent on the Government pleading non-exhaustion to satisfy it that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see, in particular, Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999 ‑ V; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II; Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 others, § 74, 25 March 2014, and Gherghina v. Romania [GC] (dec.), no. 42219/07, § 85, 9 July 2015). Once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996 ‑ IV, and Prencipe v. Monaco, no. 43376/06, § 93, 16 July 2009). 46. The Court further reiterates that, where several remedies are available, the applicant is not required to pursue more than one and it is normally that individual’s choice as to which (see Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009; Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000; and Airey v. Ireland, 9 October 1979, § 23, Series A no. 32) Under the established case-law, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see, inter alia, Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009, and Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, ECHR 2009). 47. In the present case the Court notes that on 12 July 2017 the applicants applied to the Supreme Administrative Court for annulment of the two ministerial decisions which had established the primary, middle and high school religious education programme for the school year 2017/18. On 12 and 24 July 2017 the applicants lodged requests for their case to be examined under the urgent procedure, before the start of the new school year on 11 September 2017. A hearing was initially scheduled for 12 October 2017 and was then adjourned and rescheduled for 9 November 2017, 14 December 2017 and again on six other dates in 2018. It cannot be denied that the application for annulment at the Supreme Administrative Court, coupled with a request for the case to be examined under the urgent procedure was an effective remedy to exhaust for the purposes of Article 35 § 1. However, in the circumstances, notably the successive adjournments of the examination of the case and taking into account the need for the applicants to have their case decided before the start of the new school year, the remedy lost much of its effectiveness. As a result, it cannot be reasonably claimed by the Government that the lodging of the applications with the Court on 5 and 8 January 2018 had rendered them premature, as more than three months had already passed since the start of the new school year. 48. As regards the Government’s argument that the applicants did not file an application to suspend enforcement or for an interim injunction, the Court does not consider this remedy effective: having regard to the Supreme Administrative Court’s stance on the applicants’ request to have the urgent procedure applied, the Court considers that the probability of having a course curriculum suspended because of a pending application for annulment were less than slim. 49. Furthermore, by filing an application with the Supreme Administrative Court, the applicants sought to obtain the annulment of the ministerial decisions in question and not compensation. Moreover, for section 105 to apply, the alleged damage had to have been caused by the unlawful acts of State organs. However, the Government did not specify which unlawful act was at stake in this situation. The Government have not given any examples of case-law in order to demonstrate that an action for damages could have restored the applicants’ rights under Articles 8 and 9 of the Convention and Article 2 of Protocol No. 1. An action for damages under section 105 was therefore not an effective remedy in the present case. 50. Finally, as regards the failure of the applicants to use the exemption procedure and file a “recourse” in the event that their application for exemption was dismissed, the Court considers that this could be understood as an indication that the adult applicants and their children were people without religious beliefs or people adhering to a religion other than Orthodox Christian. Consequently, this aspect of the non-exhaustion argument raised by the Government is closely related to the substance of the case, and should be joined to the merits. 51. Accordingly, with the exception of the above-mentioned aspect of the non-exhaustion argument, the Court dismisses the Government’s objection based on the premature nature of the applications and the applicants’ failure to exhaust domestic remedies. Loss of victim status 52. The Government asserted that at the time of the application the third applicant in application no. 4762/18 had been in the last months of the final grade of high school and would not be taught at school again, and that she had now completed her studies and was about to reach adulthood. On her reaching adulthood, the first and second applicants would have no right to complain of human rights violations in her name. 53. The applicant maintained that it was at least provocative for the Government to invoke inaction on the part of the State authorities throughout the year 2017 in order to claim that the applicants were no longer victims, as the applicants had made timely use of domestic remedies. Furthermore, the present application had been brought in January 2018, when the third applicant had still been a student and would have been for at least another six months or so. 54. The Court reiterates that it falls first to the national authorities to redress any alleged violation of the Convention. Hence, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings before the Court (see Scordino v. Italy (no. 1) [GC], no.36813/97, § 179, ECHR 2006-V). In this regard, the applicant must be able to justify his or her status as a victim throughout the proceedings (see Burdov v. Russia, no. 59498/00, § 30, 7 May 2002, and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 80, ECHR 2012). The issue of whether a person may still claim to be a victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his situation (ibid., § 82). 55. The Court notes that the applicants filed an application for annulment of the two impugned ministerial decisions dated 13 and 16 June 2017 before the judgment of the Supreme Administrative Court adopted on 2 July 2017, that is, approximately two months before the start of the school year 2017/18. On the same date and again on 24 July 2017 the applicants asked to have their case urgently heard by the Holidays Section so that they could be served with the decision prior to the start of the new school year, but the court dismissed their requests for lack of importance. As a result, the new school year started at the beginning of September 2017 with both applicant students being obliged to follow the religious education course during the whole school year. On 5 January 2018 the applicants lodged their application with the Court. On that date and during the whole school year 2018 the Supreme Administrative Court did not adjudicate the case and kept on adjourning the hearing until 21 September 2018, by which time the school year had already finished. 56. Having regard to the specific circumstances of the case, the Court considers that that the most appropriate and adequate redress in the present case would not have been the payment of compensation to the applicants, particularly as regards the third applicant in application no. 4762/18, who was in her last year at school, but a decision on the substance of the complaints raised in their application to the Supreme Administrative Court. 57. The Court therefore considers that all the applicants were victims on the date of the application and can still claim to be victims, because to date no judgment has yet been delivered in their cases. 58. Accordingly, the Government’s objection must be dismissed. Conclusion 59. Noting that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 60. The applicants claimed in the first place that decisions no. 9902/2017 and no. 101470/2017 issued by the Minister of Education in the course of summer 2017 provided that the religious education course was of a confessional nature, promoting the “prevailing religion”. It appeared from the decisions that the purpose of the new programme was to develop a certain form of “religious personality”, develop believers of the Orthodox Christian dogma, enable students to “believe well” and not just provide them with information and knowledge. If the course was not of a catechetical and confessional nature, the State would have abolished the exemption procedure instituted by the circular of 23 January 2015, because there would have been no ground of conscientious objection. Maintaining such a procedure amounted to admitting that the course itself was an interference by the State with the formation of the religious beliefs of students. In order to ensure the mandatory nature of the course and compel students to attend the confessional religious education course, the State required those who had conscientious objections not only to express them, but also to declare explicitly and officially that they were not Orthodox Christians. 61. The applicants contended that if they had decided to make a solemn declaration in view of the exemption, they would have exposed themselves to criminal proceedings if the school principal had considered their content false. Moreover, submitting a solemn declaration to be held in the school records would have amounted to disclosing beliefs and personal sensitive data which did not fall within the ambit of the guarantees of either Directive 95/46/EC (on the protection of individuals with regard to the processing of personal data) or Law no. 2472/1997 (on protection from processing of personal data). (b) The Government 62. In the first place, the Government claimed that in the instant case, the first two applicants in application no. 4762/18 and the first applicant in application no. 6140/18 had never submitted an application for exemption, either with or without a declaration that their daughters were not Orthodox Christians, and therefore no such declaration had been processed by anyone or kept in the school records. Besides, the circular of 23 January 2015 did not recognise any “power” or “jurisdiction” of verification to school principals; it only “urged” them to verify the documentation in support of the grounds relied on by applicants, “cautioning them about the seriousness of the solemn declarations they ha[d] to file, before granting the legal exemption”. Furthermore, any processing and keeping of such declarations in the school records would be subject to the applicable data protection legislation. 63. Likewise, there was no question of “proselytism” or “indoctrination” through the new religious education programme, despite the allegations of the applicants and the third parties to the contrary, nor had any, even possible, “stigmatisation” of the applicants been proved; besides, the applicants lived on the Central Aegean islands which had remarkable cultural activity and high influxes of tourists, and where residents of various ethnic, cultural and religious backgrounds coexisted harmoniously. 64. Since the religious education course was not optional and it was the State’s mission under the Constitution to develop the religious conscience of students that were Orthodox Christians, exemption from the course was necessarily associated with a lack of religious affiliation. 65. A student was not required to disclose his or her religious convictions and to only make a negative declaration to the effect that he or she was not an Orthodox Christian. This declaration served the purpose of avoiding circumvention of the State’s constitutional mission because, when a student was not an Orthodox Christian, the State was not required to develop his or her religious conscience. Furthermore, precisely because it was impossible and unacceptable for State organs to verify the religious convictions of a student, the declaration was equivalent to confirmation that real grounds of religious conscience for exemption existed, so as to prevent the submission of false declarations that would undermine the fair and equal teaching of courses and conceal illegitimate purposes – in particular to reduce the courses in which a student had to be examined and assessed. Under the new, pluralistic programme, the possibility of exemption was maintained even though the religious education course was not confessional and not exclusively addressed to Orthodox Christians. 66. The Government claimed that the State provided the right to full exemption from the religious education course which, as its teaching had been established and conducted under the new programme, constituted no indoctrination or proselytism. The exemption procedure, through the submission of an application and a solemn declaration, served the purpose of transparency and preventing a mass submission of applications that could have led to full abolition of the course. Besides, the exemption procedure protected students against possible abuses of this right by exempted students, who would thus gain an advantage over the former in assessments or otherwise. 67. The Government also emphasised that the applicants had not actually sought to obtain an exemption from the religious education course because they had actually wanted to have a course drawn up and taught as per their beliefs. But the right to have a State draw up a religious education course as per parents’ wishes was not derived from any of the Articles of the Convention. The State should have been supported for having maintained the right of exemption while having at the same time introduced a new pluralistic religious education programme. It was also noteworthy that following the adoption of the new programme, applications for exemption had been submitted by Greek Orthodox parents stating, among other things, that the course itself and the way it was taught did not inspire towards the Orthodox faith and contained chapters which had absolutely no relation to that faith. 68. Finally, the Government contended that the implementation of the new programme as from the school year 2017/18 had been general and universal, in all primary and secondary schools. On the basis of information and a survey presented before the 2 nd Panhellenic Conference of Teachers of Theology in 2018, it was estimated that the new programme had been fully implemented in primary education, while in secondary education it had been implemented by 60 to 70% of schools. Between 5 and 10% had not implemented it at all, because the teachers had either not been trained or had not agreed with its orientations. Third party interveners (a) National Secular Society 69. The National Secular Society stated that the system for exemption from religious education classes operated by Greece appeared to be in conflict with key elements of the Court’s case-law. It depended on treating those of a particular faith as a cohesive group in defiance of the need to treat freedom of religion or belief primarily as an individual right that flowed from the Court’s case-law. It also imposed oppressive conditions on parents seeking to obtain an exemption from religious education classes for their children by obliging them to reveal their or their children’s religious beliefs and subjecting those beliefs to scrutiny by a third party (the school principal), and requiring records of those beliefs to be retained unnecessarily and indefinitely. These were features which the Court had repeatedly found to be in violation of Article 9 read in conjunction with Article 14. 70. The National Secular Society submitted that the policy of the Greek State seemed to have the effect of making the availability of protection of the rights of parents under Article 2 of Protocol No. 1 dependent on whether or not their children adhered to the Orthodox faith. If parents who saw themselves as Orthodox Christians but who dissented from certain teachings of the Orthodox Church wished to bring their children up in accordance with their own individual interpretation of Orthodox Christianity, they had the same right under Article 2 to ensure that those philosophical beliefs were not undermined by the education system as a person whose beliefs fully aligned with mainstream Orthodox Christian teaching or a person who was an atheist or member of another faith. Moreover, a policy requiring that parents were answerable for the religious and philosophical beliefs of children who could be of sufficient maturity to form their own views failed to show respect for matters of individual conscience. (b) Greek Helsinki Monitor 71. The Greek Helsinki Monitor emphasised that soon after the Court’s judgment on religious oath taking in Greece in Alexandridis v. Greece (no. 19516/06, 21 February 2008), the Ministry of Education had issued two circulars, in July and August 2008, confirming and solidifying the year-long practice that exemption from religious education would be granted when requested by students or their parents for reasons of consciousness without any declaration of religious beliefs being requested. However, not only had the change introduced by the circular of 23 January 2015 been unnecessary, it had also led to a disturbance in the democratic functioning of the education system. This disturbance had been caused by the imposition of institutional discrimination and a violation of the Convention for those who had to declare their (non-) religious beliefs in order to enjoy another right, that of the exemption from religious education. Moreover, both the Court ( Folgerø and Others, cited above) and the UN Human Rights Committee (in its views on Leirvag v. Norway – Communication no. 1155/2003) had ruled that asking parents to provide reasons as to why they sought to exempt their children from religious education was contrary to the Convention and the International Covenant on Civil and Political Rights. 72. Referring to the above-mentioned Folgerø and Others judgment, the Greek Helsinki Monitor stated that a comparison between the Norwegian and Greek religious education curricula indicated that the Greek curriculum was much less objective, critical and pluralistic, and much more a form of indoctrination into the official State religion, as it admittedly had a “confessional” character. Whereas in Norway half of the items listed referred to Christianity alone, in Greece, according to an official report by the Church of Greece in June 2017, 82% of the items in primary religious education had a confessional character (of which only 10% had an inter-confessional character) and 18% had a non-confessional character. The respective percentages for middle religious education were 74% confessional (of which 20% were inter-confessional) against 26% non-confessional. Both in the legislation and the circulars, as well as in practice, there was a thorough teaching of Orthodox Christianity and usually a superficial teaching of other Christian and non-Christian religions or other beliefs. In that report, the Church of Greece expressed its satisfaction with the confessional character of religious education. (c) ELIAMEP (Hellenic Foundation for European and Foreign Policy – Grassrootsmobilise Research Programme) 73. ELIAMEP emphasised that in the new religious education course Orthodoxy remained predominant in the teaching of religion in terms of the time and space allotted to it in the course, but also in that students did not only learn about Orthodoxy but were taught it as the faith of the nation. The fact that the course was exclusively taught by Orthodox theologians supported the latter notion. In primary school the course was taught by the one teacher in charge of the entire curriculum, but in secondary education (grades 7 to 12), the course was exclusively taught by Orthodox theologians graduating from one of the two Orthodox Faculties of Theology in Athens and Thessaloniki. Moreover, in many schools across Greece, the previous version of the religious education course was taught, wherein not only was Orthodoxy taught in a directly catechetical manner, but many minority faiths were presented in a derogatory way. Few theologians made use of the new books and chose, instead, not to implement the new programme; this was largely due to the fact it allowed a degree of flexibility as to the ways in which each theologian chose to implement the guidelines. A call for a return to the previous approach to the teaching of religious education had been supported in judgment no. 660/2018 of the Supreme Administrative Court. 74. Furthermore, ELIAMEP pointed out that the stringent requirements regarding exemption from religious education classes had a highly distressing effect on students, who often preferred to keep their religious affiliation hidden or lie about it rather than risk being exposed to the school authorities. Because of the catechetical nature of the course, parents of religious minority children often chose the right to exemption which was available to them, but in so doing were forced to weigh the benefits of their children not attending a course which indoctrinated their children in a different faith against the potential stigmatisation of their children in their being singled out for opting out of the course. The Court’s assessment (a) General principles 75. The first sentence of Article 2 of Protocol No. 1 provides that everyone has the right to education. The right set out in the second sentence of the Article is an adjunct of the right to education set out in the first sentence. Parents are primarily responsible for the education and teaching of their children; it is in the discharge of this duty that parents may require the State to respect their religious and philosophical convictions (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 52, Series A no. 23). The second sentence of Article 2 of Protocol No. 1 aims at safeguarding the possibility of pluralism in education, a possibility which is essential for the preservation of the “democratic society” as conceived by the Convention. It implies that the State must take care that information included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions (see Folgerø and Others, § 84, and Lautsi and Others, § 62, both cited above). 76. The word “respect” in Article 2 of Protocol No. 1 means more than “acknowledge” or “take into account”; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State (see Lautsi and Others, cited above, § 61, and Campbell and Cosans v. United Kingdom, 25 February 1982, § 37, Series A no. 48). Nevertheless, the requirements of the notion of “respect” imply that the States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In the context of Article 2 of Protocol No. 1, that concept implies in particular that this provision cannot be interpreted to mean that parents can require the State to provide a particular form of teaching (see Lautsi and Others, cited above, § 61, and Bulski v. Poland (dec.), nos. 46254/99 and 31888/02, 30 November 2004). 77. In order to examine the disputed legislation under Article 2 of Protocol No. 1, interpreted as above, one must, while avoiding any evaluation of the legislation’s expediency, have regard to the material situation that it sought and still seeks to meet. Although, in the past, the Convention organs have not found education providing information on religions to be contrary to the Convention, they have carefully scrutinised whether students were obliged to take part in a form of religious worship or were exposed to any form of religious indoctrination. In the same context, the arrangements for exemption are also a factor to be taken into account (see Hasan and Elyem Zengin, cited above, § 53). 78. Such an interpretation of the second sentence of Article 2 of Protocol No. 1 is consistent with the first sentence of the same provision, with Articles 8 to 10 of the Convention and with the general spirit of the Convention itself, an instrument designed to maintain and promote the ideals and values of a democratic society. This is particularly true in that teaching is an integral part of the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its students as well as their personal independence (ibid., § 55). 79. The Court further draws attention to its fundamentally subsidiary role in the Convention protection system. The Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto, and in so doing enjoy a margin of appreciation, subject to the supervisory jurisdiction of the Court. Through their democratic legitimation, the national authorities are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, inter alia, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII, and Garib v. the Netherlands [GC], no. 43494/09, § 137, 6 November 2017). 80. Where the legislature enjoys a margin of appreciation, the latter in principle extends both to its decision to intervene in a given subject area and, once having intervened, to the detailed rules it lays down in order to ensure that the legislation is Convention compliant and achieves a balance between any competing public and private interests. However, the Court has repeatedly held that the choices made by the legislature are not beyond its scrutiny and has assessed the quality of the parliamentary and judicial review of the necessity of a particular measure (see Lekić v. Slovenia [GC], no. 36480/07, § 109, 11 December 2018). (b) Application of these principles 81. In the first place, the Court considers that the main issue raised in the present case is that of the obligation imposed on the parents to submit a solemn declaration declaring that their children were not Orthodox Christians, in order for the latter to be exempted from the religious education course. In the circumstances of the case, the content of religious education lessons as such is not directly connected to that of exemption from the course and the Court will not consider it separately. 82. The Court reiterates the Contracting Parties’ positive obligation under the second sentence of Article 2 of Protocol No. 1, which gives parents the right to demand from the State respect for their religious and philosophical convictions in the teaching of religion. Where a Contracting State includes religious instruction in the curriculum for study, it is then necessary, in so far as possible, to avoid a situation where pupils face a conflict between the religious education given by the school and the religious or philosophical convictions of their parents. In this connection, the Court notes that, with regard to religious instruction in Europe and in spite of the variety of teaching approaches, almost all of the member States offer at least one route by which pupils can opt out of religious education classes, by providing an exemption mechanism or the option of attending a lesson in a substitute subject, or making attendance at religious studies classes entirely optional (see Hasan and Elyem Zengin, cited above, § 71). 83. The Court notes that, under Article 16 § 2 of the Constitution and the Education Act, the religious education course is mandatory for all students (see paragraphs 16-17 above). However, the circular of 23 January 2015 provides that non-Orthodox Christian students, that is to say students with different religious or doctrinal affiliation or non-religious students, who rely on grounds of religious conscience, may be exempted from attending the course. This exemption procedure was maintained in force by Article 25 § 3 of a decision of the Minister of Education dated 23 January 2018 (see paragraphs 29 and 31 above). 84. In the Court’s view, what matters in respect of Article 2 of Protocol No. 1 is to ascertain whether the conditions imposed by the circular of 23 January 2015 are likely to place an undue burden on parents and require them to disclose their religious or philosophical convictions in order to have their children exempted from the religious education course. In this regard, the Court reiterates that that it has always stressed that religious convictions are a matter of individual conscience (see, inter alia, Sofianopoulos and Others v. Greece (dec.), nos. 1977/02, 1988/02 and 1997/02, ECHR 2002 ‑ X). 85. It is clear that the above circular does not require religious justification to be provided in the exemption form. However, the Court notes that the parents are obliged to submit to the school principal a solemn declaration in writing, countersigned by the teacher, stating that their child is not an Orthodox Christian. The school principal has the responsibility to check the documentation in support of the grounds relied on by the parents and draw their attention to the seriousness of the solemn declaration they have filed. 86. Checking the seriousness of the solemn declaration implies that the school principal is to verify whether it contains false information, namely whether the birth certificate of the child which indicates the parents’ religion and which must be submitted to the school authorities (see paragraphs 18-19 above) corresponds to the solemn declaration. In addition, “religion” as a subject is compulsory in primary, middle and high school, as well as in certificates of studies, under the relevant ministerial decisions (see paragraph 19 above). Where there is a discrepancy, the school principal must alert the public prosecutor that a false solemn declaration may have been submitted, since it is a criminal offence under Article 22 § 6 of Law no. 1599/ 1986 and Article 37 of the Code of Criminal Procedure (see paragraphs 20-21 above). 87. The Court considers that the current system of exemption of children from the religious education course is capable of placing an undue burden on parents with a risk of exposure of sensitive aspects of their private life and that the potential for conflict is likely to deter them from making such a request, especially if they live in a small and religiously compact society, as is the case with the islands of Sifnos and Milos, where the risk of stigmatisation is much higher than in big cities. The applicant parents asserted that they were actually deterred from making such a request not only for fear of revealing that they were not Orthodox Christians in an environment in which the great majority of the population owe allegiance to one particular religion (see Grzelak v. Poland, no. 7710/02, § 95, 15 June 2010), but also because, as they pointed out, there was no other course offered to exempted students and they were made to lose school hours just for their declared beliefs. 88. Although the first two applicants in application no. 4762/18 and the first applicant in application no. 6140/18 were under no obligation to disclose their religious convictions, requiring them to submit a solemn declaration amounted to forcing them to adopt behaviour from which it might be inferred that they themselves and their children hold – or do not hold – any specific religious beliefs (see, mutatis mutandis, Alexandridis, cited above, § 38, and Dimitras and Others v. Greece, nos.42837/06, 3237/07, 3269/07, 35793/07 et 6099/08, § 78, 3 June 2010). 89. In the above-mentioned cases the Court stated that the freedom to manifest one’s beliefs also contained a negative aspect, namely the individual’s right not to manifest his or her religion or religious beliefs and not to be obliged to act in such a way as to enable conclusions to be drawn as to whether he or she held – or did not hold – such beliefs. The State authorities did not have the right to intervene in the sphere of individual conscience and to ascertain individuals’ religious beliefs or oblige them to reveal their beliefs concerning spiritual matters. Conclusion 90. Having regard to the foregoing, the Court dismisses the Government’s objection of non-exhaustion as regards the applicants’ omission to use the exemption procedure and concludes that there has been a breach of their rights under the second sentence of Article 2 of Protocol No. 1, as interpreted in the light of Article 9 of the Convention. APPLICATION OF ARTICLE 41OF THE CONVENTION 91. Article 41of the Convention provides: Article 41 “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 92. The applicants in both applications each claimed 8,000 euros (EUR) in respect of non-pecuniary damage. 93. The Government contended that the claim had been made without setting out any specific arguments or indicating the damage personally suffered by the applicants as a consequence of the matters complained of. The Government considered that the finding of a violation would constitute sufficient just satisfaction under Article 41. 94. The Court considers that the applicants sustained, owing to the violation as found, non-pecuniary damage which cannot be redressed by the mere finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards jointly to the three applicants in application no. 4762/18 the sum of EUR 8,000 and jointly to the two applicants in application no. 6140/18 the sum of EUR 8,000 under this head. Costs and expenses 95. The applicants in application no. 4762/18 also claimed EUR 6,566.52 for the costs and expenses incurred before the Supreme Administrative Court. Neither these applicants nor those in application no. 6140/18 claimed any amount for the costs and expenses incurred before the Court. 96. The Government contended that the applicants should not have claimed an amount for a procedure which was pending before the Supreme Administrative Court but which had actually followed in time the procedure before the Court. Recourse to the Court might not have been necessary following the – not yet issued – judgment of the Supreme Administrative Court. 97. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,566.52 concerning costs incurred by the applicant in application no. 4762/18 before the Supreme Administrative Court. | The Court held that there had been a violation of Article 2 (right to education) of Protocol No. 1 (right to education) to the Convention, interpreted in the light of Article 9 of the Convention. It stressed in particular that the authorities did not have the right to oblige individuals to reveal their beliefs. However, the system in Greece for exempting children from religious education classes required parents to submit a solemn declaration saying that their children were not Orthodox Christians. That requirement placed an undue burden on parents to disclose information from which it could be inferred that they and their children held, or did not hold, a specific religious belief. Moreover, such a system could even deter parents from making an exemption request, especially in a case such as that of the applicants, who lived on small islands where the great majority of the population owed allegiance to a particular religion and the risk of stigmatisation was much higher. Perovy v. Russia |
643 | Journalists and publishing companies | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Criminal Code of 21 December 1937 (version in force until 31 December 2006) 17. The relevant provisions of the Criminal Code read as follows. Article 39 – Short periods of imprisonment [ arrêts ] “1. Short periods of imprisonment [ arrêts ] correspond to the least severe custodial sentence available. Their duration is one day minimum and three months maximum ...” Article 293 – Publication of secret official deliberations “1. Anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of any authority which are secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment [ arrêts ] or a fine. 2. Complicity in such acts shall be punishable. 3. The court may decide not to impose any penalty if the secret concerned is of minor importance.” B. Criminal Code of 21 December 1937 (version in force since 1 January 2007) 18. The provisions of the Criminal Code read as follows. Article 293 – Publication of secret official deliberations “1. Anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of any authority which are secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with a fine. 2. Complicity in such acts shall be punishable. 3. The court may decide not to impose any penalty if the secret concerned is of minor importance.” C. Code of Criminal Procedure of the Canton of Vaud of 12 September 1967 19. The relevant provisions of the Code of Criminal Procedure of the Canton of Vaud of 12 September 1967 read as follows. Article 166 – Secrecy “Preliminary police inquiries shall be secret. Articles 184 to 186 are applicable by analogy.” Article 184 – Secrecy of investigations “1. All investigations must remain secret until their final conclusion. 2. Secrecy shall concern all evidence uncovered by the investigation itself and all non-public investigative decisions and measures.” Article 185 – Persons bound to secrecy “Judges, prosecutors and judicial staff may not disclose items of evidence or information on the investigation to anyone who does not have access to the files, except to the extent that such disclosure would be useful to the investigation or is justified on public-order, administrative or judicial grounds.” Article 185a “1. The parties, their friends and relatives, their lawyers, the latter ’ s associates, consultants and staff, and any experts and witnesses are required to observe the secrecy of the investigation vis-à-vis anyone who does not have access to the files. 2. Disclosure of such information to friends or relatives by the parties or their lawyers shall not be punishable.” Article 185b “1. As an exception to Article 185, the cantonal investigating judge and, with the latter ’ s agreement, the judge responsible for the preliminary inquiry or senior police officers specially appointed by the cantonal government [ Conseil d ’ État ] (see Article 168, paragraph 3) may inform the press, radio or television about a pending investigation if so required by the public interest or considerations of fairness, particularly in the following cases: (a) where public cooperation is required to shed light on an offence; (b) in cases which are particularly serious or are already known to the general public; (c) where erroneous information must be corrected or the general public reassured. 2. If a press conference is organised, counsel for the parties and the public prosecutor shall be invited to attend. 3. If incorrect information has been disclosed to the press, radio or television, the parties may apply to the cantonal investigating judge to order rectification of such information, via the same media.” Article 186 – Sanctions “1. Anyone who breaches the secrecy of investigations shall be punished with a fine of up to five thousand Swiss francs, unless this act is punishable under other provisions protecting secrecy. 2. In very minor cases the person in question may be exempted from any penalty. ...” D. Directives of the Swiss Press Council 20. The Directives relating to the Declaration of the Duties and Rights of the Journalist issued by the Swiss Press Council which are relevant to the instant case read as follows. Directive 3.8 – Right to be heard against grave accusations “According to the principle of fairness and the general ethical requirement that both parties to a dispute must be heard ( audiatur et altera pars ), journalists are obliged to contact and hear, prior to publication, the views of those accused of serious offences. In so doing they must describe in detail the serious accusations which they are intending to publish. There is no obligation for the statements of the person accused of serious offences to be given the same weight in a report as the criticism of his or her actions. These statements must, however, be presented fairly when published in the same media report.” Directive 7.2 – Identification “Journalists must weigh carefully the various interests involved (the general public ’ s right to information, protection of the private sphere). Names or personally identifiable information is allowed: – when the person involved appears publicly in relation to the issue or consents to publication in other ways; – when the person is famous and the media report concerns the reason for his or her celebrity; – when the person involved holds political office or a leading government or social position which is linked to the media report; – when naming the person is necessary to avoid confusion that would be deleterious to other persons; – when naming or identifying the person is also justified by an overriding public interest. Where the interest in protecting private life outweighs the public interest in identification, journalists shall publish neither names nor any other information that would identify the person to third parties who do not belong to his or her family, social or professional sphere, and who are therefore informed solely through the media.” III. RELEVANT EUROPEAN INSTRUMENTS AND COMPARATIVE LAW MATERIAL A. Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe to member states on the provision of information through the media in relation to criminal proceedings (adopted by the Committee of Ministers on 10 July 2003) 21. The relevant passages of Recommendation Rec(2003)13 read as follows. “... Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so; Recalling that the rights to presumption of innocence, to a fair trial and to respect for private and family life under Articles 6 and 8 of the Convention constitute fundamental requirements which must be respected in any democratic society; Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system; Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention; ... Desirous to enhance an informed debate on the protection of the rights and interests at stake in the context of media reporting relating to criminal proceedings, and to foster good practice throughout Europe while ensuring access of the media to criminal proceedings; ... Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states: 1. take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions, 2. disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and 3. bring them in particular to the attention of judicial authorities and police services as well as to make them available to representative organisations of lawyers and media professionals. Appendix to Recommendation Rec(2003)13 – Principles concerning the provision of information through the media in relation to criminal proceedings Principle 1 – Information of the public via the media The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles. Principle 2 – Presumption of innocence Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused. ... Principle 6 – Regular information during criminal proceedings In the context of criminal proceedings of public interest or other criminal proceedings which have gained the particular attention of the public, judicial authorities and police services should inform the media about their essential acts, so long as this does not prejudice the secrecy of investigations and police inquiries or delay or impede the outcome of the proceedings. In cases of criminal proceedings which continue for a long period, this information should be provided regularly. ... Principle 8 – Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” B. Comparative law 22. As regards the issue of penalties provided for in cases of breaches of the secrecy of criminal investigations, the Court has comparative law material at its disposal relating to thirty member States of the Council of Europe (Austria, Azerbaijan, Belgium, Bulgaria, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Moldova, Monaco, Poland, Portugal, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, the former Yugoslav Republic of Macedonia, Turkey, Ukraine and the United Kingdom). The disclosure of information covered by the secrecy of criminal investigations is penalised as such in all those States. 23. In twenty-three of the thirty member States concerned, the penalties are general in scope, that is to say that they may be imposed on anyone who has disclosed information covered by the secrecy of criminal investigations. In the seven remaining States (Austria, Lithuania, Luxembourg, Moldova, Romania, Spain and Ukraine), the penalties only target persons involved in the criminal investigation. Most of those twenty-three States have opted for criminal penalties, while in Estonia, the Russian Federation and the Czech Republic a breach of the secrecy of criminal investigations is only liable to administrative sanctions. THE LAW 24. The applicant complained that his criminal conviction had resulted in a violation of his right to freedom of expression as provided in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The Chamber judgment 25. In its judgment of 1 July 2014, the Chamber concluded that there had been a violation of Article 10. It first of all considered that the applicant ’ s conviction and the fine imposed on him for using and reproducing extracts from the investigation file in his article had amounted to interference with his right to freedom of expression and that such interference had been prescribed by law and had pursued the following legitimate aims: preventing “the disclosure of information received in confidence”, maintaining “the authority and impartiality of the judiciary” and protecting “the reputation [and] rights of others”. 26. The Chamber then stated that the impugned article originated from a set of judicial proceedings initiated following an incident which had occurred under exceptional circumstances, which had immediately aroused interest among the public and which had prompted many media outlets to cover the case and its handling by the criminal justice system. In the impugned article the applicant looked at the character of the accused and attempted to understand his motives, while highlighting the manner in which the police and judicial authorities were dealing with him, a man who seemed to be suffering from psychiatric disorders. The Chamber therefore concluded that the article had addressed a matter of public interest. 27. However, the Chamber noted that the applicant, an experienced journalist, must have known that the documents that had come into his possession were covered by the secrecy of judicial investigations. That being the case, he ought to have complied with the relevant legal provisions. 28. In weighing up the competing interests at stake, the Chamber found that the Federal Court had merely noted that the premature disclosure both of the records of interviews and of the letters sent by the accused to the judge had necessarily infringed both the presumption of innocence and, more broadly, the accused ’ s right to a fair trial. However, the article in issue had not addressed the matter of the accused ’ s guilt and had been published more than two years before the first hearing at his trial for the alleged offences. Furthermore, the accused had been tried by courts made up exclusively of professional judges, with no lay jury participating, which also reduced the risks of articles such as the present one affecting the outcome of the judicial proceedings. 29. Inasmuch as the Government had alleged that the disclosure of the documents covered by the secrecy of judicial investigations had constituted interference with the accused ’ s right to respect for his private life, the Chamber noted that, although remedies had been available to the accused under Swiss law for claiming compensation for the damage to his reputation, he had failed to use them. Accordingly, the second legitimate aim relied upon by the Government was necessarily less important in the circumstances of the case. 30. As regards the Government ’ s criticism of the form of the impugned article, the Chamber reiterated that in addition to the substance of the ideas and information expressed, Article 10 also protected the manner in which the latter were conveyed. 31. Finally, although the fine had been imposed for a “minor offence” and heavier penalties, including prison sentences, could be imposed for the same offence, the Chamber considered that because of its significant deterrent effect, the fine imposed in the instant case had been disproportionate to the aim pursued. 32. The Chamber concluded that the reasons put forward by the national authorities were relevant but not sufficient to justify such an interference with the applicant ’ s right to freedom of expression. B. The parties ’ submissions to the Grand Chamber 1. The applicant 33. The applicant accepted that his conviction had had a legal basis, but submitted that it had not been necessary in a democratic society. 34. He submitted first of all that the publication had not been intended to disclose confidential information but rather had satisfied a public interest, namely the obligation to inform the population of facts relating to a major event which had shocked the inhabitants of Lausanne and French-speaking Switzerland. He contended that, although that information had indeed been formally confidential, its nature had not been such as to justify keeping it secret. 35. The applicant also pointed out that the impugned publication had not influenced the ongoing investigations or infringed the presumption of innocence in respect of the accused. As regards this latter principle, the applicant emphasised that while it was binding on State authorities, it could not prevent private individuals from forming an opinion before the end of a criminal trial. As in Campos Dâmaso v. Portugal (no. 17107/05, § 35, 24 April 2008), no non-professional judge could have been called on to determine the case, which had in fact been tried by a court made up exclusively of professional judges. The applicant submitted that it transpired from the Criminal Court judgment of 23 November 2005 and the Criminal Court of Cassation judgment of 26 June 2006 that the impugned article had had no impact on M.B. ’ s trial. Moreover, the Federal Court judgment had not established any such impact, confining itself to general considerations on the risks of collusion and the danger of evidence being tampered with or destroyed. Moreover, the applicant submitted that, even though at the time of publication of the impugned article no one could have known that the accused ’ s trial would take place two years later, which would have decreased even further the potential impact of the article on the ongoing proceedings, it had been certain that the investigation leading up to the trial would continue for many more months. 36. As regards the protection of M.B. ’ s right to respect for his private life, the applicant reiterated that M.B. had neither applied to the courts nor had recourse to the legal remedies available to him. That being the case, the State ’ s positive obligation to protect the accused ’ s private life was merely a theoretical question, whereas the Court ’ s assessment should be carried out in concreto. The present case involved a “virtual” balancing act between the rights of a journalist who had actually been convicted in criminal proceedings and those of an accused person who had never even intended to rely on his right to protection of his private life, despite having had the opportunity to do so. 2. The Government 37. The Government did not contest the fact that there had been an interference in the applicant ’ s exercise of his right to freedom of expression, referring to the Chamber finding that such interference had been “prescribed by law” and had pursued a “legitimate aim”. 38. The Government ’ s arguments centred mainly on the necessity of the interference in a democratic society. 39. First of all the Government observed that in the instant case there had been no compelling reasons to inform the public that might have enabled the applicant to disregard the secrecy of the investigation. They referred to a number of cases adjudicated by the Court inferring the existence of a public interest from the high profile of the individuals involved in the criminal proceedings in question. With reference to Leempoel & S.A. ED. Ciné Revue v. Belgium (no. 64772/01, § 72, 9 November 2006), the Government emphasised that the mere fact that the information published might satisfy some kind of public curiosity was insufficient. They also referred to the conclusion reached by the Federal Court in its judgment of 28 April 2008 to the effect that, even though the circumstances of the accident had been unusual and had triggered a great deal of public emotion, it had nevertheless, in legal terms, simply been a road accident. The Government further contended that the interest triggered by the media coverage of the case could not per se amount to a “public interest” in the disclosure of classified information. More specifically, they disputed the idea that publishing the accused ’ s correspondence might be in the public interest, because the letters in question had shed no light on the circumstances of the accident and had related to the accused ’ s private life. The Government also submitted that the same applied to the publication of the extracts from the records of interviews. 40. As regards the balancing of the interests at stake, the Government reiterated that the general public ’ s right to receive information on judicial activities was subject to respect for the rights of others to the presumption of innocence, a fair trial and protection of private and family life, as secured by Articles 6 and 8 of the Convention. They emphasised in that context that the principle of subsidiarity which underpinned the Convention system meant that the balancing exercise in question was primarily a matter for the domestic courts, which requirement had been fulfilled in the present case because the Federal Court had conducted an in-depth assessment of the matter. 41. As regards the accused ’ s right to respect for his private life, the Government submitted that the impugned article had included a close-up photograph of him and a whole series of strictly personal details, including data from the interview records and statements by his wife and his doctor, in addition, of course, to the letters sent by the accused to the investigating judge providing details of his private life in prison. The Government also argued that the context of the article and the terms used had shown the accused ’ s personality in a particularly unfavourable and indiscreet light. The Government pointed out that Article 8 of the Convention entailed a positive obligation inherent in effective respect for private life, and that this positive obligation was especially important in the case of vulnerable persons, such as a prisoner, especially one who was apparently suffering from mental disorders. Referring to Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, § 104, ECHR 2012), the Government observed that the choice of the means calculated to secure compliance with Article 8 of the Convention fell within the States ’ margin of appreciation and that in the present case the application of Article 293 of the Criminal Code provided an appropriate means of protecting the accused ’ s private life. Lastly, the Government contended that the Chamber had evaded the issue of weighing up the applicant ’ s right to the exercise of the freedom of the press against the accused ’ s right to protection of his private life by merely noting that the accused had not brought any legal action to ensure the protection of that right even though he could have done so under Swiss law. They submitted that the existence of remedies to which the accused could have had recourse did not exempt the State from fulfilling its positive obligation. The Government added that the accused, who had been incarcerated and suffered from mental disorders, had probably not been in a position to commence legal proceedings in defence of his interests. 42. As regards the protection of the ongoing investigation and the presumption of innocence, the Government submitted that the fact that the hearing had been held more than two years after the publication of the impugned article and that the accused had been tried by professional judges rather than a lay jury had been unknown at the time of publication. They therefore argued that the Chamber had been wrong to take these facts into account in its judgment. Furthermore, the Government submitted that the Court could not expect them to provide proof that the disclosure of confidential information had caused actual and tangible harm to the interests protected. Such a requirement would deprive the secrecy of judicial investigations of much of its meaning. 43. As regards the proportionality of the penalty imposed, the Government emphasised that the fine had not exceeded half the applicant ’ s monthly income and had been assessed on the basis of factors including the applicant ’ s previous record. They also pointed out that it had not been the applicant himself but his employer who had paid the fine. C. The Court ’ s assessment 1. Existence of an interference “prescribed by law” and pursuing a “legitimate aim” 44. In its judgment of 1 July 2014, the Chamber noted that there had been no disagreement between the parties as to the fact that the applicant ’ s conviction had constituted an interference with his exercise of the right to freedom of expression as secured under Article 10 § 1 of the Convention. 45. Nor had it been disputed that the interference was prescribed by law, that is to say the Criminal Code and the Code of Criminal Procedure of the Canton of Vaud. 46. Furthermore, in its judgment (paragraphs 40-41) the Chamber found that the impugned measure had pursued legitimate aims, namely preventing “the disclosure of information received in confidence”, maintaining “the authority and impartiality of the judiciary” and protecting “the reputation [and] rights of others”; this was also not contested by the parties. 47. The Grand Chamber sees no reason to depart from the Chamber ’ s conclusions on these three points. 2. Necessity of the interference “in a democratic society” (a ) General principles 48. The general principles for assessing the necessity of an interference with the exercise of freedom of expression, which have been frequently reaffirmed by the Court since the judgment in Handyside v. the United Kingdom (7 December 1976, Series A no. 24), were summarised in Stoll v. Switzerland ([GC], no. 69698/01, § 101, ECHR 2007-V) and were restated more recently in Morice v. France ([GC], no. 29369/10, § 124, ECHR 2015 ) and Pentikäinen v. Finland ([GC], no. 11882/10, § 87, ECHR 2015): “(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...” 49. Moreover, as regards the level of protection, there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in two fields, namely political speech and matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 46, ECHR 2007-IV; Axel Springer AG v. Germany [GC], no. 39954/08, § 90, 7 February 2012; and Morice, cited above, § 125). Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, as is the case in particular for remarks on the functioning of the judiciary, even in the context of proceedings that are still pending (see, mutatis mutandis, Roland Dumas v. France, no. 34875/07, § 43, 15 July 2010; Gouveia Gomes Fernandes and Freitas e Costa v. Portugal, no. 1529/08, § 47, 29 March 2011; and Morice, cited above, § 125). A degree of hostility (see E.K. v. Turkey, no. 28496/95, §§ 79-80, 7 February 2002, and Morice, cited above, § 125) and the potential seriousness of certain remarks (see Thoma v. Luxembourg, no. 38432/97, § 57, ECHR 2001-III, and Morice, cited above, § 125) do not obviate the right to a high level of protection, given the existence of a matter of public interest (see Paturel v. France, no. 54968/00, § 42, 22 December 2005, and Morice, cited above, § 125). 50. The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, as well as the need to prevent the disclosure of information received in confidence, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997-I; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999 ‑ III; Thoma, cited above, § § 43 - 45; and Tourancheau and July v. France, no. 53886/00, § 65, 24 November 2005). Indeed, the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism. The concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the contents of information which is collected and/or disseminated by journalistic means (see Pentikäinen, cited above, § 90, and the cases referred to therein). In its judgment in Pentikäinen, the Court pointed out that the concept of responsible journalism also embraces the lawfulness of the conduct of a journalist, and the fact that a journalist has breached the law is a relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly (ibid.). 51. In particular, it is inconceivable that there should be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them. However, consideration must be given to everyone ’ s right to a fair hearing as secured under Article 6 § 1 of the Convention, which, in criminal matters, includes the right to an impartial tribunal (see Tourancheau and July, cited above, § 66) and the right to the presumption of innocence (ibid., § 68). As the Court has already emphasised on several occasions (ibid., § 66; see also Worm v. Austria, 29 August 1997, § 50, Reports 1997 ‑ V; Campos Dâmaso, cited above, § 31; Pinto Coelho v. Portugal, no. 28439/08, § 33, 28 June 2011; and Ageyevy v. Russia, no. 7075/10, §§ 224-25, 18 April 2013 ): “This must be borne in mind by journalists when commenting on pending criminal proceedings since the limits of permissible comment may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of criminal justice.” 52. Furthermore, when it is called upon to adjudicate on a conflict between two rights which enjoy equal protection under the Convention, the Court must weigh up the competing interests. The outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the offending article or under Article 10 of the Convention by the author of that article, because these two rights deserve, in principle, equal respect (see Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, ECHR 2015). Accordingly, the margin of appreciation should in theory be the same in both cases (see Von Hannover (no. 2), § 106; Axel Springer AG, § 87; and Couderc and Hachette Filipacchi Associés, § 91, all cited above). 53. The Court considers that analogous reasoning must apply in weighing up the rights secured under Articles 10 and 6 § 1 respectively. 54. Lastly, the Court reiterates that account must be taken of the need to strike the right balance between the various interests involved. Because of their direct, continuous contact with the realities of the country, a State ’ s courts are in a better position than an international court to determine how, at a given time, the right balance can be struck. For this reason, in matters under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any interference in the freedom of expression protected by that Article (see, among other authorities, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 54, ECHR 2011), in particular when a balance has to be struck between conflicting private interests. Where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court ’ s case-law, weighty reasons are required if it is to substitute its view for that of the domestic courts (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011; Palomo Sánchez and Others, cited above, § 57; and, more recently, Haldimann and Others v. Switzerland, no. 21830/09, §§ 54-55, ECHR 2015 ). (b ) Application of these principles to the present case 55. In the present case, the applicant ’ s right to inform the public and the public ’ s right to receive information come up against equally important public and private interests which are protected by the prohibition on disclosing information covered by the secrecy of criminal investigations. Those interests are the authority and impartiality of the judiciary, the effectiveness of the criminal investigation and the right of the accused to the presumption of innocence and protection of his private life. The Court considers, as it did, mutatis mutandis, in Axel Springer AG (cited above, §§ 89-95) and Stoll (cited above, §§ 108-61), that it is necessary to specify the criteria to be followed by the national authorities of the States Parties to the Convention in weighing up those interests and therefore in assessing the “necessity” of the interference in cases involving a breach by a journalist of the secrecy of judicial investigations. Those criteria emerge from the aforementioned general principles, but also, to some extent, from the legislation of the thirty Council of Europe member States the Court surveyed in connection with the present application (see paragraphs 22-23 above). (i) How the applicant came into possession of the information in issue 56. The Court reiterates that the manner in which a person obtains information considered to be confidential or secret may be of some relevance for the balancing of interests to be carried out in the context of Article 10 § 2 (see Stoll, cited above, § 141). 57. In the present case it was not alleged that the applicant had obtained the information in question by unlawful means (see paragraph 12 above). Nevertheless, this is not necessarily a determining factor in assessing whether or not he complied with his duties and responsibilities when publishing the information. The fact is, as the Chamber rightly noted, that the applicant, as a professional journalist, could not have been unaware of the confidential nature of the information he was planning to publish (ibid., § 144). Moreover, at no point did the applicant dispute, either before the domestic courts or before the Court, the fact that publication of the information in question might fall within the scope of Article 293 of the Criminal Code (compare Dupuis and Others v. France, no. 1914/02, § 24, 7 June 2007). (ii) Content of the impugned article 58. The Court reiterates that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see Stoll, cited above, § 103). Furthermore, Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. Consequently, it is not for this Court, or for the national courts for that matter, to substitute their own views for those of the press as to what reporting technique should be adopted by journalists (ibid., § 146; see also Laranjeira Marques da Silva v. Portugal, no. 16983/06, § 51, 19 January 2010). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313; Thoma, cited above, §§ 45-46; Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003 ‑ V; and Ormanni v. Italy, no. 30278/04, § 59, 17 July 2007). 59. In the present case, the Court notes that in its judgment of 29 April 2008 the Federal Court conducted a lengthy assessment of the article, concluding that “[t]he manner in which he quoted the excerpts from the records of interviews and reproduced the letters sent by the defendant to the judge pointed to the motives of the author of the impugned article: he confined himself to sensationalism, his modus operandi being exclusively geared to satisfying the relatively unhealthy curiosity which anyone is liable to feel about this type of case. Readers of this highly biased publication would have formed an opinion and subjectively prejudged the future action to be taken by the courts regarding this case, without the least respect for the principle of presumption of innocence.” 60. For its part, the Court notes that, even though the impugned article did not take a specific stance on the intentional nature of the offence the accused was alleged to have committed, it nevertheless painted a highly negative picture of him, adopting an almost mocking tone. The headlines used by the applicant – “Questioning of the mad driver”, “the reckless driver ’ s version” and “He lost his marbles...” – as well as the large close-up photograph of the accused accompanying the text, leave no room for doubt that the applicant had wanted his article to have a sensationalist tone. Moreover, the article emphasised the vacuity of the accused ’ s statements and his many contradictions, which were often explicitly described as “repeated lies”, concluding with the question whether, by means of “this mixture of naivety and arrogance”, M.B. was “doing everything in his power to make himself impossible to defend”. The Court emphasises that those were precisely the kind of questions that the judicial authorities were called upon to answer, at both the investigation and the trial stages. 61. On this point the Court likewise sees no weighty reason to call into question the fully reasoned decision of the Federal Court. (iii) Contribution of the impugned article to a public-interest debate 62. In its judgment of 1 July 2014, the Chamber noted that the incident which had been the subject of the criminal proceedings in issue had immediately attracted public interest and led many media outlets to cover the case and its handling by the criminal justice system. 63. The Court reiterates that it has already held that the public has a legitimate interest in the provision and availability of information on criminal proceedings, and that remarks concerning the functioning of the judiciary relate to a matter of public interest (see Morice, cited above, § 152). 64. In the present case the Court accepts that the subject of the article, namely the criminal investigation into the Lausanne Bridge tragedy, was a matter of public interest. This highly exceptional incident had triggered a great deal of emotion among the population, and the judicial authorities had themselves seen fit to inform the press of certain aspects of the ongoing inquiry (see paragraph 11 above). However, the question arising here is whether the content of the article and in particular the information which was covered by the secrecy of judicial investigations were capable of contributing to the public debate on this issue (see Stoll, cited above, § 121; see also Leempoel & S.A. ED. Ciné Revue, cited above, § 72 ) or served purely to satisfy the curiosity of a particular readership regarding the details of the accused ’ s private life (see, mutatis mutandis, Von Hannover v. Germany, no. 59320/00, § 65, ECHR 2004 ‑ VI; Société Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40; and Mosley, cited above, § 114). 65. The Court notes in this connection that after an in-depth assessment of the content of the article, the nature of the information provided and the circumstances surrounding the “Lausanne Bridge” case, the Federal Court, in a lengthily reasoned judgment which contained no hint of arbitrariness, held that neither the disclosure of the records of interviews nor that of the letters sent by the accused to the investigating judge had provided any insights relevant to the public debate and that the interest of the public in this case had at the very most “ involved satisfying an unhealthy curiosity” (see paragraph 16 above). 66. For his part, the applicant failed to demonstrate how the fact of publishing records of interviews, statements by the accused ’ s wife and doctor and letters sent by the accused to the investigating judge concerning banal aspects of his everyday life in detention could have contributed to any public debate on the ongoing investigation. 67. Accordingly, the Court sees no weighty reason to substitute its own view for that of the Federal Court (see, mutatis mutandis, MGN Limited, §§ 150 and 155; Palomo Sánchez and Others, § 57; and Haldimann and Others, §§ 54-55, all cited above), which had a certain margin of appreciation in such matters. (iv) Influence of the impugned article on the criminal proceedings 68. While emphasising that the rights guaranteed by Article 10 and Article 6 § 1 deserve equal respect in principle (see paragraph 53 above), the Court reiterates that it is legitimate for special protection to be afforded to the secrecy of a judicial investigation, in view of what is at stake in criminal proceedings, both for the administration of justice and for the right of persons under investigation to be presumed innocent (see Dupuis and Others, cited above, § 44). It emphasises that the secrecy of investigations is geared to protecting, on the one hand, the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed and, on the other, the interests of the accused, notably from the angle of presumption of innocence and, more generally, his or her personal relations and interests. Such secrecy is also justified by the need to protect the opinion-forming and decision-making processes within the judiciary. 69. In the instant case, even though the impugned article did not openly support the view that the accused had acted intentionally, it was nevertheless set out in such a way as to paint a highly negative picture of him, highlighting certain disturbing aspects of his personality and concluding that he was doing “everything in his power to make himself impossible to defend” (see paragraph 60 above). It is undeniable that the publication of an article slanted in that way at a time when the investigation was still ongoing entailed an inherent risk of influencing the course of proceedings in one way or another, whether in relation to the work of the investigating judge, the decisions of the accused ’ s representatives, the positions of the parties claiming damages, or the objectivity of the trial court, irrespective of its composition. 70. The Grand Chamber considers that a government cannot be expected to provide ex post facto proof that this type of publication actually influenced the conduct of a given set of proceedings. The risk of influencing proceedings justifies per se the adoption by the domestic authorities of deterrent measures such as prohibition of the disclosure of secret information. The lawfulness of those measures under domestic law and their compatibility with the requirements of the Convention must be capable of being assessed at the time of the adoption of the measures, and not, as the applicant submits, in the light of subsequent developments revealing the actual impact of the publications on the trial, such as the composition of the trial court (see paragraph 35 above). 71. The Federal Court was therefore right to hold, in its judgment of 29 April 2008, that the records of interviews and the accused ’ s correspondence had been “discussed in the public sphere, before the conclusion of the investigation, before the trial and out of context, in a manner liable to influence the decisions taken by the investigating judge and the trial court ”. (v) Infringement of the accused ’ s private life 72. The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06 § 40, 21 September 2010; and Axel Springer AG, cited above, § 83 ). The concept of “private life” is a broad term which is not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person, and can therefore embrace multiple aspects of the person ’ s identity such as, for example, gender identification, sexual orientation, name and elements relating to a person ’ s right to his or her image (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). It covers personal information which individuals can legitimately expect should not be published without their consent (see Flinkkilä and Others v. Finland, no. 25576/04, § 75, 6 April 2010, and Saaristo and Others v. Finland, no. 184/06, § 61, 12 October 2010). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG, cited above, § 83). 73. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91; Armonienė v. Lithuania, no. 36919/02, § 36, 25 November 2008; Von Hannover (no. 2), cited above, § 98; and Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013). That also applies to the protection of a person ’ s picture against abuse by third parties (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002; Von Hannover, cited above, § 57; Reklos and Davourlis v. Greece, no. 1234/05, § 35, 15 January 2009; and Von Hannover (no. 2), cited above, § 98). 74. The Court notes that in order to fulfil its positive obligation to safeguard one person ’ s rights under Article 8, the State may have to restrict to some extent the rights secured under Article 10 for another person. When examining the necessity of that restriction in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression as protected by Article 10 and, on the other, the right to respect for private life as enshrined in Article 8 (see Hachette Filipacchi Associés ( ICI PARIS ), § 41; MGN Limited, § 142; and Axel Springer AG, § 84, all cited above). 75. The Government argued that in the present case the Swiss authorities had both a negative and a positive obligation to protect the accused ’ s private life. The Government rightly observed that the choice of means calculated to secure compliance with this positive obligation fell within the States ’ margin of appreciation. They submitted that Article 293 of the Criminal Code, which made it an offence to disclose classified information, fulfilled that function. 76. The Court has already examined under Article 8 the issue of respect for an accused person ’ s private life in a case involving a violation of the secrecy of judicial investigations. In Craxi v. Italy (no. 2) (no. 25337/94, § 73, 17 July 2003) it held that the national authorities were not merely subject to a negative obligation not to knowingly disclose information protected by Article 8, but that they should also take steps to ensure effective protection of an accused person ’ s right to respect for his correspondence. Consequently, the Court considers that the criminal proceedings brought against the applicant by the cantonal prosecuting authorities were in conformity with the positive obligation incumbent on Switzerland under Article 8 of the Convention to protect the accused person ’ s private life. Furthermore, the information disclosed by the applicant was highly personal, and even medical, in nature, including statements by the accused ’ s doctor (see paragraph 10 above), as well as letters sent by the accused from his place of detention to the investigating judge responsible for the case. The Court takes the view that this type of information called for the highest level of protection under Article 8; that finding is especially important as the accused was not known to the public and the mere fact that he was the subject of a criminal investigation, albeit for a very serious offence, did not justify treating him in the same manner as a public figure, who voluntarily exposes himself to publicity (see, mutatis mutandis, and by contrast, Fressoz and Roire, cited above, § 50, and Egeland and Hanseid v. Norway, no. 34438/04, § 62, 16 April 2009). 77. In its judgment of 1 July 2014, the Chamber held that the protection of the accused ’ s private life, particularly the secrecy of correspondence, could have been ensured by means less damaging to the applicant ’ s freedom of expression than a criminal conviction. The Chamber took the view that in order to uphold his rights under Article 8 of the Convention, the accused could have had recourse to the civil-law remedies available to him under Swiss law. The Court considers that the existence of those civil-law remedies under domestic law for the protection of private life does not release the State from its positive obligation deriving, in each individual case, from Article 8 of the Convention vis-à-vis a person accused in criminal proceedings. 78. At all events, as regards the particular circumstances of the present case, it should be noted that when the impugned article was published the accused was in prison, and therefore in a situation of vulnerability. Moreover, there is nothing in the case file to suggest that he was informed of the publication of the article and of the nature of the information it provided. In addition, he was probably suffering from mental disorders, thus increasing his vulnerability. In those circumstances, the cantonal authorities cannot be blamed for considering that, in order to fulfil their positive obligation to protect M.B. ’ s right to respect for his private life, they could not simply wait for M.B. himself to take the initiative in bringing civil proceedings against the applicant, and for consequently opting for an active approach, even one involving prosecution. (vi) Proportionality of the penalty imposed 79. The Court reiterates that the nature and severity of the penalties imposed are further factors to be taken into account when assessing the proportionality of an interference (see, for example, Stoll, cited above, § 153). Furthermore, the Court must be satisfied that the penalty does not amount to a form of censorship intended to discourage the press from expressing criticism. In the context of a debate on a topic of public interest, such a sanction is likely to deter journalists from contributing to public discussion of issues affecting the life of the community. By the same token, it is liable to hamper the press in performing its task as purveyor of information and public watchdog. In that connection, the fact of a person ’ s conviction may in some cases be more important than the minor nature of the penalty imposed (ibid., § 154). 80. Moreover, the Court notes that the disclosure of information covered by the secrecy of judicial investigations is punishable in all thirty Council of Europe member States whose legislation was studied in the present case (see paragraphs 22-23 above). 81. It is true that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings in matters of freedom of expression (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998-IV; Lehideux and Isorni v. France, 23 September 1998, § 57, Reports 1998-VII; Öztürk v. Turkey [GC], no. 22479/93, § 66, ECHR 1999-VI; Otegi Mondragon v. Spain, no. 2034/07, § 58, ECHR 2011; and Morice, cited above, § 127). Nevertheless, in the present case, the Court considers that the recourse to criminal proceedings and the penalty imposed on the applicant did not amount to disproportionate interference in the exercise of his right to freedom of expression. The applicant was originally given a suspended sentence of one month ’ s imprisonment (see paragraph 13 above). His sentence was subsequently commuted to a fine of CHF 4,000, which was set having regard to the applicant ’ s previous record and was not paid by the applicant but was advanced by his employer (see paragraph 14 above). This penalty was imposed for breaching the secrecy of a criminal investigation and its purpose, in the instant case, was to protect the proper functioning of the justice system and the rights of the accused to a fair trial and respect for his private life. The Court takes the view that, in those circumstances, it cannot be maintained that such a penalty was liable to have a deterrent effect on the exercise of freedom of expression by the applicant or any other journalist wishing to inform the public of ongoing criminal proceedings. (vii) Conclusion 82. In view of the foregoing, and having regard to the margin of appreciation available to States and to the fact that the exercise of balancing the various competing interests was properly conducted by the Federal Court, the Court concludes that there has been no violation of Article 10 of the Convention. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the penalty imposed on the applicant had been justified. It considered in particular that the publication of an article slanted in the way it had been at a time when the investigation was still ongoing comprised the inherent risk of influencing the conduct of proceedings which had in itself justified the adoption by the domestic authorities of deterrent measures, such as a ban on disclosing confidential information. While accepting that the accused could have had recourse to civil-law remedies to complain of interference in his private life, the Court nevertheless held that the existence in domestic law of remedies to which the accused could have had recourse did not dispense the State from its positive obligation to protect the private life of all persons charged in criminal proceedings. Finally, the Court found that the penalty imposed on the journalist for violation of secrecy, geared to protecting the proper functioning of justice and the accused’s rights to a fair trial and respect for his private life, had not amounted to disproportionate interference in the exercise of his right to freedom of expression |
177 | Right to life (Article 2 of the European Convention on Human Rights) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution 54. The relevant provisions of the Constitution read as follows. Article 21 “The life of the person is protected by law.” Article 25 “No one shall be subject to torture, or to inhuman or degrading punishment or treatment.” Article 44 “Everyone has the right to rehabilitation and/or compensation in compliance with the law in the event that he has experienced damage owing to an unlawful act, action or the omission of the State authorities.” B. Code of Criminal Procedure 55. The provisions of the Code of Criminal Procedure (“the CCP”) in force at the material time had the following content. 56. Article 24 § 4 of the CCP provided that the orders and directives of a higher ‑ ranking prosecutor were binding on a lower-ranking prosecutor. Article 24 § 5 provided that a higher-ranking prosecutor, either proprio motu or following an appeal, had the right to amend or repeal the decisions of a lower-ranking prosecutor. 57. Under Article 61, a person who had suffered pecuniary damage as a result of the commission of a criminal offence could lodge a civil claim during the criminal proceedings to seek compensation for damage. Under Article 62 § 1, the request was to be submitted prior to the commencement of the judicial examination. In accordance with Article 62 § 3, a court could decide to sever the civil claim from the criminal proceedings if its examination delayed or complicated the criminal proceedings. 58. Article 105 of the CCP provided for the right of any interested party to request copies and extracts of separate documents from the criminal investigation file, at that party’s expense. 59. Article 326 of the CCP, which provided for the prosecutor’s right to stay the criminal investigation ( pezullimi i hetimeve ), read as follows: “1. When the perpetrator of the offence is unknown ..., the prosecutor may decide to stay the criminal investigation. 2. The criminal investigation may be stayed once all possible actions have been carried out. 3. The stayed criminal investigation may recommence by a decision of the prosecutor.” 60. At the material time, there was no specific provision in the CCP for a right to appeal against a prosecutor’s decision staying a criminal investigation. 61. Article 328 of the CCP provided for the prosecutor’s right to discontinue the criminal investigation ( pushimi i çështjes ). Under Article 329 of the CCP, an appeal lay with the district court against the prosecutor’s decision to discontinue the criminal investigation. Relevant domestic case-law concerning the stay of the investigation 62. In one case a complainant, H.S., lodged a criminal complaint with the prosecutor’s office concerning the death of his sister. The prosecutor stayed the investigation on the basis of Article 326 § 1 of the CCP on the grounds that no perpetrator of the crime could be traced. The complainant instituted legal proceedings against the stay of the criminal investigation. He complained that he had not been informed of the content of the investigation file or the stay of the criminal investigation, that the prosecutor had not questioned all the witnesses and that he had no effective remedy to complain about the decision to stay the criminal investigation. The domestic courts dismissed his action. The Tirana Court of Appeal held that, since the criminal investigation had been ongoing, and since the prosecutor’s office had had the discretion to determine the investigative actions to be carried out, the complainant did not have legal standing. It reaffirmed that there was no right of appeal against a decision to stay criminal proceedings under the criminal procedural law. The complainant lodged a constitutional complaint with the Constitutional Court, which was dismissed by decision no. 4 of 18 January 2013. The Constitutional Court stated, among other things, that there was no remedy under domestic law against a prosecutor’s decision staying a criminal investigation. However, the fact that the complainant had had access to the domestic courts indicated that he had an effective right to appeal to a court. C. Criminal Code 63. The Criminal Code consists of chapters, which themselves are made up of sections. Chapter II of the Specific Part of the Code is devoted to criminal offences against the person. Section I of Chapter II covers intentional crimes against life and, at the relevant time, contained more than ten different provisions in respect of murder. Section III of Chapter II deals with intentional crimes against health. Assault offences, which are further categorised according to the level of severity of the inflicted injury, fall under Section III and include torture (Article 86), causing serious intentional injury (Article 88), non-serious intentional injury (Article 89) and other intentional harm (Article 90). Of those offences, only the criminal offence of causing non-serious intentional injury (Article 89) falls into the category of private prosecution cases, which have to be brought by the individual concerned directly before the competent court, and can be withdrawn at any stage of the proceedings (Article 284 of the CCP). 64. Article 88 of the Criminal Code provides that causing serious intentional injury resulting in disfigurement, mutilation or any other permanent damage to health is to be punished with imprisonment of between three and ten years. Article 279 provides, among other things, that the production and illegal possession of bladed weapons is punishable by a fine or up to five years’ imprisonment. 65. Following amendments made to the Criminal Code in 2012, Article 130/a introduced domestic violence as a criminal offence. Battery or any other violent act, serious threat of death or serious injury, intentional injury against the spouse, former spouse, cohabitee, former cohabitee or any other person related by way of family ties to the perpetrator, with the intention of violating that person’s physical, psychosocial and economic integrity, is to be punished with imprisonment of between two and five years. 66. In 2013 amendments were made to Article 50 of the Criminal Code, which now treats as an aggravating circumstance the commission of a criminal offence committed during or after a court protection order issued in respect of domestic violence. D. Civil Code 67. Article 608 of the Civil Code provides that anyone who unlawfully and wrongfully causes damage to another person or to that person’s property is obliged to pay compensation for the damage. He is not liable if he proves that he was not at fault. 68. Article 609 provides that the damage must be the result of a person’s direct and immediate act or omission. 69. Article 625 provides that a person who suffers non-pecuniary damage is entitled to compensation if there has been damage to his health or physical or mental integrity or if his honour, personality or reputation have been infringed, or if his right to respect for his private life has been infringed. 70. Under Article 640, pecuniary damage includes the actual loss suffered and loss of profit. Reasonable and necessary expenses incurred may also be subject to compensation. 71. Under Article 641, a person who causes damage to someone else’s health must pay compensation, regard being had to the loss or reduction of ability to work and medical or other expenses incurred in connection with the damage caused. Relevant domestic case-law concerning the payment of damages 72. The Government submitted, as part of their observations, some domestic case-law concerning the payment of damages. 73. In unifying decision no. 12 of 14 September 2007, following a civil claim for damages and expenses against the Albanian Insurance Bureau (a State entity) for the death of three people in a car accident, the Supreme Court Joint Benches ruled, in so far as relevant, as follows: “... [T]he domestic courts have accepted that three people lost their lives in a car accident ... [S]ubstantially under Article 608 of the Civil Code ... the legislature provides for the protection of the right to life, health, personality, dignity, private life and so on from the unlawful acts of a third party. If there is a violation of any of these rights as a result of the unlawful act, the injured party has the right to extra-contractual compensation ... In applying Article 609 of the Civil Code, the causal material link between the unlawful behaviour (the act or omission) and the fault and the damage should be proved. In determining the actual damage caused by the unlawful fact and the relevant compensation, the causal juridical link between them should also be proved. The causal material link serves to identify the person responsible and the causal links among the three elements of the unlawful act: the unlawful behaviour, the fault and the consequence resulting therefrom, that is the damage to another person or to that person’s property ... The causal juridical link serves to demonstrate the causal link between the unlawful act, taken in its entirety, and the specific infringement of the lawful rights and interests [of another person] ... The loss of profit [provided for in Article 640 of the Civil Code] relates to the inability to obtain future pecuniary damages, that is, an asset which does not belong to the injured person at the time the damage has been caused. ... Non-pecuniary compensation for damage to one’s health under Article 625 of the Civil Code may be sought independently of a claim for pecuniary damage as a result of the loss or reduction of ability to work as provided for in Article 641 of the Civil Code. An injured person seeking compensation in reliance on Article 641 of the Civil Code bears the burden of proving the amount of income that he could no longer earn as a result of the loss or reduction of ability to work, after discharging the obligation to demonstrate damage to his health, its permanent or temporary nature, and the degree of damage.” 74. In another case, a complainant had requested compensation from a State entity under Article 640 of the Civil Code for damage caused to his health as a result of a firearm injury caused by State police officers. In its decision no. 275 of 24 September 2009, the Supreme Court remitted the case for re-examination to the relevant court of appeal. It reasoned that, as a result of the complainant’s injury by the State police officers, it had been duly proved that damage had been caused to his health. 75. In a decision of 25 November 2011, the Tirana District Court accepted a civil claim by complainants for compensation against State authorities and two private companies jointly and severally, lodged under, inter alia, Articles 625 and 640 of the Civil Code, as a result of their family member’s death in a massive explosion at a weapons decommissioning facility. The court reasoned that criminal responsibility was independent of the civil obligation to pay compensation, which related only to compensation for damage inflicted by the dangerous activity of decommissioning weapons. E. The Domestic Violence Act (Law no. 9669 on measures against violence in family relations of 18 January 2006, as amended by Law no. 9914 of 12 May 2008, Law no. 10329 of 30 September 2010 and Law no. 47/2018 of 23 July 2018) 76. The Domestic Violence Act, which entered into force on 1 June 2007, established a mechanism by which to provide victims of domestic violence with a protection order which may be issued by a civil court at the request of the victim. An emergency (“immediate”) protection order may be granted provisionally by a court if the perpetrator has threatened to commit acts of domestic violence or if the perpetrator poses a direct and immediate threat to the security, health or well-being of the victim or other family members (section 19). An emergency protection order remains valid until the court grants a protection order. The Act provides for better protection, not only for persons who are currently in a family relationship but also for persons who used to be in a family relationship, such as former spouses or partners (section 3). 77. The adoption of a protection order or an emergency protection order does not prevent the victim from instituting criminal proceedings under the Criminal Code (section 24). The police, the prosecutor or a non ‑ governmental organisation may also request the adoption of a protection order or an emergency protection order (section 13). When the request has been submitted by the police or the prosecutor, the victim’s withdrawal will not lead to the discontinuation of the case (section 16). 78. Section 10 lists the protection measures that may be ordered by a court. A protection order may thus include, among other measures, the removal of the perpetrator from the victim’s home (regardless of the perpetrator’s property rights), a prohibition on the perpetrator coming within a certain distance of the victim or other family members, a prohibition on the perpetrator entering or staying in the temporary or permanent residence of the victim, or any part thereof, the placement of women and their children in temporary shelters, or an order for the perpetrator to participate in rehabilitation programmes. 79. The Domestic Violence Act also provides for the establishment of a shelter for victims of domestic violence (section 6 as amended) and a coordinated system for referring cases of domestic violence to the authorities. 80. Breaching a protection order constitutes a criminal offence under Article 321 of the Criminal Code and is punishable by a fine or up to two years’ imprisonment. III. RELEVANT INTERNATIONAL LAW AND MATERIAL CONCERNING GENDER-BASED VIOLENCE A. United Nations Convention on the Elimination of All Forms of Discrimination against Women 81. The Convention on the Elimination of All Forms of Discrimination against Women (“the CEDAW Convention”) was adopted in 1979 by the United Nations General Assembly and Albania ratified it on 9 November 1993. The implementation of the CEDAW Convention is monitored by the Committee on the Elimination of Discrimination against Women (“the CEDAW Committee”), which makes general recommendations to the States parties on any specific matters concerning the elimination of discrimination against women 82. At its eleventh session in 1992, the CEDAW Committee adopted General Recommendation no. 19 on violence against women (A/47/38). It defined gender-based violence as “violence which is directed against a woman because she is a woman or that affects women disproportionately”. General Recommendation no. 19 stated that “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation”. As regards comments on specific Articles of the CEDAW Convention, General Recommendation no. 19 further noted that “traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them of the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. While this comment addresses mainly actual or threatened violence the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to their low level of political participation and to their lower level of education, skills and work opportunities”. 83. On 26 July 2017 the CEDAW Committee updated its General Recommendation no. 19 by adopting General Recommendation no. 35 on gender-based violence against women (CEDAW/C/GC/35). According to General Recommendation no. 35, gender-based violence against women “is one of the fundamental social, political and economic means by which the subordinate position of women with respect to men and their stereotyped roles are perpetuated. Throughout its work, the [CEDAW] Committee has made clear that this violence is a critical obstacle to achieving substantive equality between women and men as well as to women’s enjoyment of human rights and fundamental freedoms enshrined in the [CEDAW] Convention. It takes multiple forms, including acts or omissions intended or likely to cause or result in death or physical, sexual, psychological or economic harm or suffering to women, threats of such acts, harassment, coercion and arbitrary deprivation of liberty. ... Gender-based violence against women may amount to torture or cruel, inhuman or degrading treatment in certain circumstances, including in cases of rape, domestic violence or harmful practices. ... When acts of gender-based violence against women amount to torture or cruel, inhuman or degrading treatment, a gender-sensitive approach is required to understand the level of pain and suffering experienced by women, and that the purpose and intent requirements for classifying such acts as torture are satisfied when acts or omissions are gender-specific or perpetrated against a person on the basis of sex”. 84. The CEDAW Committee recommended that measures should be taken in the areas of prevention, protection, prosecution and punishment, redress, data collection and monitoring, and international cooperation in order to accelerate the elimination of gender-based violence against women. 85. As regards protection, the CEDAW Committee recommended that States parties, among other things, “adopt and implement effective measures to protect and assist women complainants of and witnesses to gender-based violence before, during and after legal proceedings and ensure that all legal proceedings, protective and support measures and services concerning victims/survivors respect and strengthen their autonomy”. 86. As regards prosecution and punishment, the CEDAW Committee recommended that States parties, among other things, “(a) ensure effective access for victims to courts and tribunals and that the authorities adequately respond to all cases of gender-based violence against women, including by applying criminal law and, as appropriate, ex officio prosecution to bring alleged perpetrators to trial in a fair, impartial, timely and expeditious manner and imposing adequate penalties; fees or court charges should not be imposed on victims/survivors; and (b) address factors that heighten the risk to women of exposure to serious forms of gender-based violence, such as the ready accessibility and availability of firearms, including their export, a high crime rate and pervasive impunity, which may increase in situations of armed conflict or heightened insecurity. Efforts should be undertaken to control the availability and accessibility of acid and other substances used to attack women”. 87. As regards reparation, the CEDAW Committee recommended that States parties, among other things, “(a) provide effective reparations to victims/survivors of gender-based violence against women. Reparations should include different measures, such as monetary compensation, the provision of legal, social and health services, including sexual, reproductive and mental health services for a complete recovery, and satisfaction and guarantees of non-repetition. Such reparations should be adequate, promptly attributed, holistic and proportionate to the gravity of the harm suffered; and (b) establish specific funds for reparations or include allocations in the budgets of existing funds, including under transitional justice mechanisms, for reparations to victims of gender-based violence against women”. B. Council of Europe materials 1. Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”) 88. The Istanbul Convention was adopted by the Committee of Ministers on 7 April 2011. It was opened for signature on 11 May 2011 and came into force on 1 August 2014. Albania ratified the Istanbul Convention on 4 February 2013. The Istanbul Convention applies to all forms of violence against women, including domestic violence, and it provides a comprehensive framework to prevent, prosecute and eliminate violence against women and domestic violence and to protect victims. 2. The European Convention on the Compensation of Victims of Violent Crimes 89. The European Convention on Compensation to Victims was ratified by Albania on 26 November 2004 and it entered into force in respect of Albania on 1 March 2005. The Ministry of Justice is the Central Authority for the purpose of the European Convention on Compensation to Victims. The European Convention on Compensation to Victims requires its Contracting Parties, in the absence of compensation from other sources, to contribute to compensate the victims of intentional and violent offences, which have been committed on their territory and have resulted in bodily injury or death. Compensation should be awarded even if the offender has not been prosecuted or punished. 90. Its Explanatory Report states that the European Convention on Compensation to Victims is not directly enforceable, and that it is for the “Contracting States to establish the legal basis, the administrative framework and the methods of operation of the compensation schemes”. 3. Committee of Ministers’ Recommendation 2002(5) on the protection of women against violence 91. In its Recommendation (2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe recommended, among other things, that member States should “have an obligation to exercise due diligence to prevent, investigate and punish acts of violence, whether those acts are perpetrated by the state or private persons, and provide protection to victims”. 92. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge, and take specific measures to ensure that children’s rights are protected during proceedings. C. Reports on acid violence 1. United Nations Secretary-General report on violence against women 93. In a report on violence against women of 20 August 2004 (A/59/281), the United Nations Secretary-General provided information about legislative, policy and other measures undertaken by various countries and other international institutions to combat all forms of violence against women, as well as crimes against women committed in the name of honour. Of particular relevance for the present case was the fact that Bangladesh had enacted, among other things, the Acid Control Act in 2002 and that a special tribunal had been established throughout the country to deal with cases related to violence against women. 2. United Nations Special Rapporteur’s report on violence against women, its causes and consequences, on her mission to Bangladesh 94. In 2013 the United Nations Special Rapporteur on violence against women conducted an official visit to Bangladesh in order to examine the situation of violence against women in the country. In her report to the United Nations General Assembly (A/HRC/26/38/Add.2), the Special Rapporteur stated, inter alia, as follows: “11. The prevalence of acid attacks remains problematic in the country, and these attacks occur within both the family and the community spheres. Civil society organizations reported 31 cases of acid violence in Bangladesh between January and August 2013. Of this total, 22 attacks were against adult women and 4 against girls. Likewise, in 2012, women and girls were the main victims of acid violence, with 58 women and 20 girls being targeted out of a total of 105 cases. Acid is generally thrown on the face or sexual organs of female victims when demands for sex or marriage proposals are refused. The ultimate aim is to damage the victim’s appearance in order to destroy her marriage prospects. ... 55. As regards acid attacks, the Acid Crime Control Act of 2002 stipulates that the punishment for killing a person with acid or injuring a person resulting in the loss of vision, hearing, or damage or disfigurement of the face, breasts or sexual organs can result in capital punishment or life imprisonment and a fine not exceeding one lakh taka (approximately USD 1190). Furthermore, damage for disfigurement to any part of the body will result in a 14-year prison sentence or at least 7 years of ‘rigorous imprisonment’.” 3. European Parliament’s Committee on Civil Liberties, Justice and Home Affairs’ opinion on violence against women 95. On 14 January 2014 the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs gave an opinion to the European Parliament’s Commission on Combating Violence Against Women on a motion for a European Parliament resolution relating to violence against women. The opinion stated that violence against women could include, without limitation, “violence in close relationships, rape, including marital rape, dowry violence, female genital mutilation, acid throwing, forced marriage, sexual abuse, forced prostitution and pornography, trafficking of women and forced suicide”. 4. Other relevant materials (a) Combating acid violence in Bangladesh, India and Cambodia 96. In 2011 the Avon Global Centre for Women and Justice at Cornell Law School, the Committee on International Human Rights of the New York City Bar Association, the Cornell Law School International Human Rights Clinic and the Virtue Foundation, having regard to the highest recorded incidence of acid violence in Bangladesh, India and Cambodia, released a report on combating acid violence in those countries. The report emphasised that acid attacks were often perpetrated against women because they transgressed gender norms that relegate women to subordinate positions. Moreover, the duty to prevent human rights violations included an obligation to enact legislation designed to curb acid violence. In addition to legislation the governments should: (1) conduct appropriate investigations of acid attacks; (2) protect victims from threats that could undermine those investigations; and (3) prosecute and punish perpetrators of acid attacks. (b) Justice? What justice? Tackling acid violence and ensuring justice for survivors 97. In 2015 the Thomson Reuters Foundation, Acid Survivors Trust International and J. Sagar Associates issued a comparative study on the existing legislation and its implementation to combat acid violence in four countries: Cambodia, Colombia, India and the United Kingdom. As regards the existence of a legal framework, the report stated that there was a special acid law in Colombia under which acid violence was a separate and specific criminal offence. There was no special legislation in India or in the United Kingdom to deal with acid violence. Instead, there were provisions in other criminal laws that made injury through the use of a corrosive substance a penal offence and provided for severe punishments for such injuries. 98. As regards prosecutions for criminal offences, the report states that “intention to commit the offence – the mens rea – and the actual act constituting the offence – the actus reus – are both essential components. It is only when both are present that a crime is said to be completed. However, there are certain instances where the liability is made absolute, i.e. the mere occurrence of the incident is sufficient to constitute an offence irrespective of the presence or absence of intention. The report states that section 20 of the United Kingdom’s Offences Against the Person Act (‘OAPA’), which does not apply to Scotland, makes it an offence to inflict grievous bodily harm upon another person without any requirement to intend to commit such harm. Charges may be brought under this provision where bystanders have been incidentally injured as the result of an attack. On the other hand, under section 29 of the OAPA, an offence is said to be committed regardless of whether injury is actually caused by the commission of the offence, provided that the offender had the requisite intent”. 99. In so far as penalties are concerned, the report added that “the laws usually provide for a spectrum of punishment and the judges decide on the punishment within the spectrum, based on a variety of factors using their discretion. In India, the considerations for increased or decreased punishments are very erratic and there are no clear sentencing guidelines. In comparison, the sentencing manual of the Crown Prosecution Service of England and Wales notes the use of acid as a factor that points to higher culpability of the offender thereby affecting the severity of the punishment. In Colombia, the sentence is also dependent on the part of the body that is affected, and a deformity of the face is considered to be more severe”. IV. RELEVANT NATIONAL AND INTERNATIONAL MATERIAL CONCERNING THE SITUATION OF WOMEN IN ALBANIA A. National reports 1. National population-based surveys of the Institute of Statistics 100. In March 2009 the national Institute of Statistics (INSTAT) released a research report entitled “Domestic violence in Albania: a national population-based survey” on the basis of data collected in 2007. The purpose of the 2007 national survey was to generate reliable data and findings about the nature and prevalence of domestic violence in the country, which would be used to inform the development of effective prevention, protection, and legal measures and policies. INSTAT carried out fresh surveys in 2013 and 2018, when women were asked about “ever” and “current” experiences with each of the different forms of domestic violence. 101. Both national population-based surveys confirmed that domestic violence against women was a widespread problem in families and communities throughout Albania. The findings revealed that the proportion of women who had “ever” experienced one form of domestic violence had increased from 56.09% in 2007 to 59.4% in 2013. It was well documented that women continued to experience multiple types of domestic violence concurrently in their marriage or intimate relationships, including multiple forms of psychological, physical and sexual violence. 102. In 2007 and 2013 battered women revealed they often experienced more or less the same domestic violence-related injuries of varying degrees of severity. In 2007 48.3% of women that experienced domestic violence reported they were injured with cuts, bruises or aches, while in 2013 only 18.8% of “ever” physically abused women reported experiencing domestic violence-related injuries. 103. The 2018 national population-based survey, which was released in March 2019, was the third attempt in Albania to collect data on violence against women and girls, including not only domestic violence, but also dating violence, non-partner violence, child sexual abuse, sexual harassment and stalking. Data in the 2019 survey provided evidence that violence against women and girls in Albania was widespread and that it affected the majority of women. The 2018 survey revealed that 52.9% of women aged between 18 and 74 had “ever” experienced one or more of the five different types of violence (intimate partner violence, dating violence, non-partner violence, sexual harassment and/or stalking) during their lifetime and 36.6% of women “currently” experienced violence. 75.4% of women reported that domestic violence against women was a major problem in Albania. 70.8% of women reported that sexual violence against women and girls was a major problem in Albania, 69.9% reported that sexual harassment of women and girls was a major problem, and 68.4% reported that stalking of women was a major problem in Albania. Given these findings, it is not surprising that the majority of women maintained it was very important to have laws in Albania that protected women and girls from violence in their marriage or families (83.0%) and from sexual assault and rape (81.9%). 104. The 2018 survey also measured social norms related to violence against women and girls, women’s perceptions of the seriousness of violence against women and girls, and the importance of having legislation related to violence against women and girls. As regards social norms related to domestic violence, the 2018 survey found that 52.2% of women aged between 18 and 74 maintained that all or most people in the community believed violence between a husband and wife was a private matter and that others should not intervene, and 46.5% maintained that all or most people in the community believed a woman should tolerate some violence to keep her family together. In addition, 27.5% of women maintained that all or most people in the community believed that when a woman was beaten by her husband, she was partly to blame or at fault and that a woman should be ashamed or embarrassed to talk to anyone outside of her family about abuse or violence in her marriage. These social norms can contribute to the prevalence of intimate partner domestic violence against women and keep battered women trapped in abusive and violent relationships. 2. Centre for Legal Civic Initiatives Report 105. In November 2010 the Centre for Legal Civic Initiatives released a report on the implementation of the Domestic Violence Act. The report monitored protection orders and emergency protection orders issued by Tirana District Court from 1 June 2009 to 1 June 2010. According to the report, there had been a marked increase in the number of women reporting incidents to the police, which was due to an increased awareness among women of the importance of reporting domestic violence and of better preparation and qualifications on the part of the relevant bodies that received and assisted victims of domestic violence. 3. Commissioner for Protection from Discrimination 106. The Commissioner for Protection from Discrimination (“the Commissioner against Discrimination”) was established by the Anti ‑ Discrimination Act (Law no. 10221 of 4 February 2010), and is the national body responsible for ensuring equality and effective protection from discrimination. 107. The 2011 annual report of the Commissioner against Discrimination stated that “women suffer from domestic violence”. The 2012 annual report stated that “several cases of violence against women had been reported, which sometimes had resulted in the loss of lives of battered women. According to statistics provided by the General Directorate of Police, 2,526 cases of domestic violence had been identified, which marked an increase by 345 cases compared to the previous year. Such increase ha[d] also been reflected in the growing number of applications for protection orders, which had totalled 1,562 in 2012, that is 217 more applications than the previous year”. B. International reports 1. Council of Europe materials (a) Report by the Group of Experts against violence against women and domestic violence 108. The Istanbul Convention’s monitoring is ensured by two distinct bodies: the Group of Experts against violence against women and domestic violence (GREVIO), an independent expert body; and the Committee of the Parties, a political body composed of representatives of the States Parties to the Istanbul Convention. 109. GREVIO’s 2017 evaluation report for Albania (GREVIO/Inf(2017)13) stated that “official statistics on cases of domestic violence portray a mixed picture, where elevated figures are the flipside of efforts aiming at encouraging reporting. From 2010 to 2014, reported cases of domestic violence rose sharply with approximately three times more women victims than men. Domestic violence far exceeds all other crimes as the criminal offence with the largest number of victims and in 2015, domestic violence related deaths alone represented 37% of all crime driven deaths”. 110. GREVIO’s evaluation report further stated that “data on domestic violence allows drawing a plausible portrait of the reality of domestic violence in Albania. Data on other forms of violence against women such as sexual violence, however, barely hint at the existence of a phenomenon which by many accounts remains largely unchartered territory, fenced off by taboos and severe under-reporting”. It encouraged the authorities to “make domestic violence against women and the gendered nature of other forms of violence against women more visible in the crime statistics presented to the public, by clearly identifying the number of women victims per type of offence. This would include the visible presentation to the public of information on the number of homicides of women at the hands of men (gender-related killing of women); and develop data categories on the type of relationship between perpetrator and victim for all forms of violence against women that would allow the nature of their relationship to be more specifically documented”. 111. GREVIO’s evaluation report stated, in so far as the victims’ right to seek compensation is concerned, as follows: “115. Pursuant to Articles 61 to 68 of the [Code of Criminal Procedure], victims of violence are entitled to apply within criminal proceedings for compensation in connection with damages suffered for the criminal act. Compensation claims settled in criminal proceedings are limited to economic damage and their payment depends on the outcome of the criminal trial. Alternatively, victims may file a compensation claim extended to all forms of damage, including non-pecuniary damage, under Article 625 of the Civil Code. There is no available information to indicate that any victim of violence against women, including domestic violence, ever instituted or benefited from such proceedings. Reports submitted to GREVIO point to elevated court fees as one of the factors preventing victims’ access to compensation, despite the principle established by law that victims of domestic violence are exempted from court fees. Moreover, there is no state compensation scheme available to victims of violence against women in Albania. No reservation was entered into by Albania exempting it from implementing Article 30, paragraph 2 of the Convention on subsidiary state compensation for serious bodily injury or impairment of health.” 112. In the light of the measures identified in GREVIO’s evaluation report, the Committee of the Parties recommended that the government of Albania take action to, among other things, ensure victims’ access to civil remedies against State authorities in particular by informing victims of their rights and raising awareness among public officials in relation thereto, and establish and fund appropriately an effective system of legal aid for the victims of all forms of violence against women covered by the Istanbul Convention and promote the exercise of victims’ right to access legal aid. (b) Reports by the Commissioner for Human Rights 113. Following an official visit to Albania from 27 October to 2 November 2007 as part of his regular country missions, the Council of Europe Commissioner for Human Rights released his report on 18 June 2008 (CommDH(2008)8), the relevant part of which states that violence against women, particularly domestic violence, was a widespread human rights violation which had been under-reported, under ‑ investigated, under-prosecuted and under-sentenced in Albania. There were an unquantified number of offenders enjoying impunity as the crime was still seen as a private issue and therefore seldom reported. 114. Following an official visit to Albania from 23 to 27 September 2013, the Commissioner released his report on 13 January 2014 (CommDH(2014)1), in which it was noted that in May 2013 amendments to the Legal Aid Act had been enacted which tasked the State Commission with granting exemptions from the payment of court fees under certain conditions. Those amendments specified that beneficiaries of legal aid, when filing civil or administrative complaints with a court, may be exempted from court fees (and court expenses) if they prove that they are, among other things, victims of domestic violence. The request would be examined by the State Commission for Legal Aid within ten days of submission. If the Commission did not decide on the request within ten days or refused it, the court could decide on the request for a fee exemption at the preliminary hearing. 2. CEDAW Committee’s Concluding Observations in respect of Albania 115. Albania has submitted three periodic reports to the CEDAW Committee on the implementation of the CEDAW Convention. 116. In its Concluding Observations of 2003 on the combined initial and second periodic reports submitted by Albania (A/58/38), the CEDAW Committee expressed “concern about the high incidence of violence against women, including domestic violence” and the “lack of systematic data collection on violence against women, in particular domestic violence”. It called upon Albania “to adopt legislation on domestic violence and to ensure that violence against women is prosecuted and punished with the required seriousness and speed” and to “devise a structure for systematic data collection on violence against women, including domestic violence”. 117. In its Concluding Observations of 16 September 2010 on the third periodic report submitted by Albania (CEDAW/C/ALB/CO/3), the CEDAW Committee remained “concerned about the continued high prevalence of violence against women in Albania”. It was particularly concerned “that domestic violence is not appropriately sanctioned and criminalized” and about “the high rate of suicide among female victims of domestic violence, about gaps in the [Domestic Violence Act] and its implementation and the lack of statistical data”. It recommended, among other things, that “[the authorities] strengthen [their] efforts to ensure that female victims of violence have immediate protection”, that “public officials, especially law enforcement officials, members of the judiciary, health-care providers and social workers, are fully sensitized to all forms of violence against women” and that “structures be established to help female victims of violence to rebuild their lives”. 118. In its Concluding Observations of 25 July 2016 on the fourth periodic report submitted by Albania (CEDAW/C/ALB/CO/4), the CEDAW Committee was concerned “about the lack of implementation of the legislation on gender equality and non-discrimination, as well as the lack of monitoring of implementation of such laws and policies” and that “women, especially those belonging to disadvantaged and marginalized groups, remain unaware of their right to legal aid and continue to face significant legal and practical barriers in gaining access to justice, which is reflected in the low number of complaints filed. It is also concerned about the widespread problem of non-execution of court orders, including orders concerning the payment of alimony”. The CEDAW Committee was also concerned that gender-based violence against women remained prevalent, which was reflected by “(a) the low rate of reporting of cases of gender ‑ based violence against women owing to women’s limited access to legal aid services, especially in rural and remote areas, as well as the absence of hotline services for women who are victims of such violence; (b) the insufficient implementation of the national referral mechanism aimed at preventing and providing protection from gender-based violence, in particular at the local level, owing to the lack of coordination among responsible entities and the lack of the necessary skills and capacity among the responsible staff; (c) the insufficient number of shelters for women who are victims of gender-based violence and the restrictive criteria for admission to such shelters, as well as the lack of medical and psychological rehabilitation services for women; and (d) the frequent failure to enforce protection orders and emergency protection orders”. 3. European Commission Progress Reports 119. The European Commission issues annual progress reports on countries which wish to accede to the European Union. The progress reports analyse, among other things, the capacity of such countries to implement European standards. 120. The 2008 Albania Progress Reports (SEC(2008) 2692) stated, among other things, that “the strategy on the prevention of domestic violence has not been enforced due to lack of implementation mechanisms. The proportion of women having suffered from domestic violence is significant and increasing. What is needed now is to allocate sufficient human and financial resources to ensure full implementation of the existing legislation”. 121. The 2009 Progress Report (SEC(2009) 1337) stated, among other things, that “domestic violence remains widespread. Many incidents went unreported. Sound data is missing. Further measures are required to strengthen the level of protection for women victims of domestic violence, including media awareness campaigns and specialised training for judges”. 122. The 2010 Analytical Report (SEC(2010) 1335) stated that “[d]omestic violence is a persistent phenomenon that affects numerous families in Albania and is an issue of serious concern ... [C]ases continue to be largely under-reported and insufficiently investigated and prosecuted, especially in rural areas. Relatively few complaints lead to criminal prosecutions, as it is generally the duty of the victim to initiate this procedure. The duty only falls upon the prosecutor to initiate a prosecution in cases that result in death, serious injury or threats to life. The protection of women and other victims against all forms of violence needs to be considerably strengthened”. 4. Amnesty International report 123. In March 2006 Amnesty International, on the basis of its own research, including the monitoring of documentation in criminal proceedings and reports in the Albanian media over a three-year period, as well as research by Albanian non-governmental organisations, professionals and academics, released a report on Albania entitled “Violence against women in the family: ‘It’s not her shame’”. The report stated, among other things, as follows: “At least a third of all women in Albania are estimated to have experienced physical violence within their families. They are hit, beaten, raped, and in some cases even killed. Many more endure psychological violence, physical and economic control ... Husbands, former husbands and partners are responsible for most of these abuses, but other family members may take part in or support acts of violence, which may often be condoned by the wider community in which the woman lives. Social attitudes and cultural values – not just of the wider public, state agents such as police, but also women themselves – encourage women to accept violence. This is not inevitable, nor does it mean that the state can abdicate from responsibility. Albania is responsible for failing to address such attitudes, which maintain women’s continuing abuse. Due to a strong sense of shame and lack of confidence in the police, women rarely call the police, and when exceptionally they do call, the police generally fail to recognize violence in the family as a criminal matter and frequently fail to investigate allegations of domestic violence. Moreover, prosecutors will generally only bring charges in cases of death or serious injury or threats with firearms or other weapons. Women are generally not encouraged to bring complaints against their attackers, and receive no effective protection from assaults or threats, including with firearms, by their husbands and relatives. Those responsible – except in cases of death or very serious injury – are not often brought to justice. There is a lack of consistency in the judiciary’s approach and in at least one case known to Amnesty International courts have shown leniency towards perpetrators who kill women on grounds of ‘honour’.” 124. The report called for “a coordinated response to violence against women in the family, an integrated multi-agency approach that includes not only law enforcement and judicial authorities, but also health care and education professionals ... Where prevention fails, law enforcement officials and prosecutors should record and monitor reported incidents, act to protect victims of violence, and respond promptly and effectively to allegations of, or threats of, violence against women. Prosecutors and judiciary should ensure that perpetrators are brought to justice. Women should have prompt access to judicial mechanisms affording protection, and to appropriate health care and shelters providing physical protection, medical assistance and psychological support”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 125. The applicant complained under Articles 2, 3 and 8 of the Convention that the authorities had failed to protect her life. She further complained about the authorities’ failure to conduct a prompt and effective investigation leading to the identification, prosecution and punishment of the assailant. 126. Being the master of the characterisation to be given in law to the facts of the case, the Court is not bound by the characterisation given by the applicant or the Government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). The Court considers that the applicant’s complaints raised under Articles 3 and 8 should be examined from the standpoint of Article 2 under its substantive and procedural aspects, in so far as they relate to the applicants’ right to life. The relevant part of this provision reads as follows: “Everyone’s right to life shall be protected by law.” A. Admissibility 1. The parties’ submissions 127. The Government submitted that the applicant had never raised her complaints before the domestic courts. She had also failed to bring a civil claim for damages under Articles 608, 625 and 640 of the Civil Code, as well as under the unifying decision of the Supreme Court Joint Benches of 14 September 2007, or a civil claim under Article 61 of the CCP in the course of criminal proceedings. The applicant’s claim seeking damages before the district court had been withdrawn as a result of her failure to appear at the hearing. Moreover, the applicant had abused her right of application since she had failed to appeal against the prosecutor’s decision staying the investigation and to make use of any other remedies. No final decision had yet been issued by the authorities. 128. The Government also submitted that the application had been lodged outside the six-month time-limit, the proceedings having been stayed on 26 February 2010 and the final decision being that of 30 May 2013. The applicant had been duly informed of the ongoing investigation. 129. The applicant submitted that there was no effective remedy of which she could make use. She had not addressed the Court with a direct application for compensation; instead her complaint had been focused on the Government’s inability to protect her life and health. A civil claim for damages would not have led to the identification and punishment of those responsible for the violation of Article 2 of the Convention. In any event a remedy under the Civil Code could be effective only after the perpetrator had been identified. The remedy under Article 61 of the CCP could be used only in the event that the case was sent for trial before a domestic court. Moreover, the Government had failed to submit any examples of domestic practice concerning the use of violence against women. No compensation had ever been awarded to women who had suffered violence. The domestic case-law submitted by the Government was not applicable in the applicant’s case since all those cases were different from hers. 130. The applicant further submitted that the authorities had not been diligent and had only replied to her request for information for the first time on 17 April 2012. Moreover, the prosecutor had failed to inform the applicant of his investigative acts and had also failed to provide her with a copy of those acts, thus making it impossible for the applicant to challenge those acts. In any event, no appeal against the prosecutor’s decision staying the proceedings was provided by law. The authorities had not been able to identify or punish the perpetrator for the violation of Article 2 of the Convention. The applicant’s situation was thus an ongoing one. 2. The Court’s assessment (a) Applicability of Article 2 131. With regard to the applicability of Article 2 in the present case, the Court notes that the applicant alleged that her injuries had been inflicted by an individual and not a State agent. The Court observes, however, that the absence of any direct State responsibility for the death of a person does not exclude the application of Article 2 of the Convention (see, for example, Yotova v. Bulgaria, no. 43606/04, § 68, 23 October 2012). 132. The Court further notes that the protection of this provision of the Convention may not only be relied upon in the event of the death of the victim of violent acts. Article 2 also comes into play in situations where the person concerned was the victim of an activity or conduct, whether public or private, which by its nature put his or her life at real and imminent risk and he or she suffered injuries that appeared to be life-threatening when they occurred, even though the person ultimately survived (see, among other authorities, Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 140, 25 June 2019; Makaratzis v. Greece [GC], no. 50385/99, § 55, ECHR 2004 ‑ XI; and Soare and Others v. Romania, no. 24329/02, § 108, 22 February 2011). In the present case the Court notes that the applicant was the subject of a violent attack which resulted in grievous injuries and pain, as well as disfigurement of 25% of her body. She was sent to hospital in a critical condition (see paragraph 6 above), and according to the report of 18 December 2009, her life would have been in danger if no specialist medical aid had been given (see paragraph 33 above). The Court therefore considers that the method used by the assailant was of a nature and intensity likely to endanger the life of the applicant. Article 2 of the Convention is therefore applicable in this case. (b) Failure to observe the six-month rule under Article 35 § 1 of the Convention 133. The Court reiterates that the purpose of the six-month rule under Article 35 § 1 of the Convention is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time (see, for example, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 129, 19 December 2017, and Opuz v. Turkey, no. 33401/02, § 110, ECHR 2009). According to its well-established case ‑ law, where no domestic remedy is available, the six-month period runs from the date of the act complained of. 134. In that regard, the Court notes that the applicant was assaulted by an unknown person on 29 July 2009. An investigation was opened by the prosecutor, who on 2 February 2010 stayed the investigation. The applicant was never informed of the outcome of the investigation. More specifically, it was only on 17 April 2012, after the request for information made by the Centre (see paragraph 35 above), that the prosecutor informed it that the criminal investigation had been stayed. However, the prosecutor informed the Centre that the case file had been transferred to the police for further action in order to identify the assailant. On 23 May 2012 the police informed the Centre that the investigation was ongoing. It was not until 8 January 2014 that the prosecutor informed the Centre that the investigation had been stayed owing to the non-identification of the assailant (see paragraph 41 above). 135. The Court notes that since the authorities informed the Centre on 8 January 2014 that the investigation had been stayed owing to the non-identification of the assailant, that event may be considered to constitute the date on which the applicant became aware of the ineffectiveness of the remedies in domestic law. The Court also notes that before that, the applicant had contacted the authorities several times for information about the progress of the investigation. Given that these circumstances indicate that the applicant acted with the requisite diligence in lodging her application once it became apparent that no redress for her complaints was forthcoming, the Court considers that the relevant date for the purposes of the six-month time-limit should not be considered to be a date earlier than 8 January 2014 (see, for example, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 258-69, ECHR 2014). 136. In the specific context of the present case, it follows that the applicant’s complaints have been lodged within the six-month time-limit provided for in Article 35 § 1 of the Convention. The Court therefore dismisses the Government’s preliminary objection in this regard. (c) Failure to exhaust domestic remedies 137. The Court notes that the Government have raised two objections based on the requirement to exhaust domestic remedies. In the first place, they contended that the applicant had failed to bring a claim for damages and, secondly, they argued that the applicant had not challenged the prosecutor’s decision staying the investigation, as a result of which no final decision had been given. 138. As regards the Government’s first objection, the Court notes that an investigation was opened by the prosecutor. The applicant had clearly expected to be informed about the outcome of the investigation and to be told that the perpetrator had been identified and punished in accordance with the criminal law. In this connection, the Court observes that, in view of the outline of domestic practice submitted by the Government, it would be very difficult for the applicant to prove her case in the event of her bringing civil proceedings under the Civil Code, seeking damages for the injuries sustained, without the perpetrator being identified. As regards a civil claim in the course of criminal proceedings under Article 61 of the CCP, the Court notes that such a claim could be submitted only if a case had been sent to trial before the domestic courts. In circumstances such as those prevailing here, with the case never having come to trial, the Court does not see how this remedy could have been effective (see also paragraph 111 above). 139. In any event, the Court considers that efficient criminal ‑ law provisions are required to ensure the effective deterrence against threats to the right to life. The civil remedies relied on by the Government cannot be regarded as sufficient for the fulfilment of a Contracting State’s obligations under Article 2 of the Convention in cases such as the present one, because their aim is to obtain an award of damages rather than to prevent, suppress and punish breaches of such provisions (see Akelienė v. Lithuania, no. 54917/13, § 69, 16 October 2018). It therefore dismisses the Government’s first objection based on non-exhaustion of domestic remedies in this respect. 140. As regards the Government’s second objection, the Court observes that the applicant was barred from challenging the prosecutor’s decision to stay the criminal investigation, as the CCP did not provide for any such right. In its decision of 18 January 2013 the Constitutional Court noted that there was no remedy under domestic law against a prosecutor’s decision staying an investigation (see paragraph 62 above). It was at the discretion of the prosecutor to reopen an investigation or not, as provided for under Article 326 of the CCP (see paragraph 59 above; see also Pihoni v. Albania, no. 74389/13, § 95, 13 February 2018). In these circumstances, the Court dismisses the Government’s second objection. (d) Conclusion 141. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant’s submissions 142. Under Article 2 of the Convention the applicant submitted that the acid attack against her had been grievous and had threatened her right to life. She submitted that the legislative framework in place did not provide sufficient protection for women against violence as the authorities had failed to comply with their obligations under the Istanbul Convention. Article 88 of the Criminal Code, for example, did not conform to Article 49 of the Istanbul Convention. Moreover, that convention was not applied by the authorities at the domestic level in cases of violence against women. In the light of the statistical data on the frequency of violence against women, the authorities ought to have known and to have taken the preventive measures necessary to protect the applicant. She also submitted that the investigation had not been effective, thorough and expeditious. The authorities had failed to take the necessary measures, in that they had been unable to examine the type of substance found in the container, or to examine the container which the perpetrator was holding, or to identify the fingerprints on the container, or to examine the applicant’s clothes. Furthermore, no measures had been taken to establish how the corrosive substance had been bought or how it had been sourced by the perpetrator. The applicant had not been informed of the continuation of the investigation or about the prosecutor’s decision discontinuing the investigation against E.A. The authorities had failed to raise suspicions in regard to any other person and no further action had been taken by them since the staying of the investigation. The applicant had not been involved in the investigation and she had never been provided with the documentation detailing the investigative actions undertaken. (b) The Government’s submissions 143. The Government submitted that the applicant had not been subjected to domestic violence or violence under Article 2 of the Convention. The legislative framework then in force provided adequate protection for victims of domestic violence in the form of the Constitution, several conventions on women rights that had been ratified by Albania, and a specific law on domestic violence that was in place. Moreover, in 2012 the Criminal Code had been amended to provide a specific offence of domestic violence and abuse, and a national action plan had been put into place. 144. As regards the general situation concerning domestic violence in Albania, the Government submitted some information from the General Directorate of the State Police ( Drejtoria e Përgjithshme e Policisë së Shtetit ) covering the period from January to December 2014. According to that information the police had identified 4,121 domestic violence criminal offences and other criminal offences which had occurred in the domestic environment, of which the police had instituted of their own motion judicial proceedings for the issuance of a protection order or an emergency protection order in 2,422 instances. The police had instituted criminal proceedings and sent the file to the prosecutor in respect of 1,797 of the remaining cases. The total number of victims had been 3,090, of whom 1,798 had been the spouse of the perpetrator. 551 perpetrators had been arrested whilst committing the offence; 48 had been detained and 147 others were still being sought by the police. In 2014, 17 cases of murder had been identified, resulting in the deaths of 22 people. There had been 10 female victims of family homicides, of whom 6 had been the spouse of the respective perpetrator. 145. The Government further submitted that, in order to protect the victims of domestic violence, the police had undertaken various actions, including the following: the issuing of an action plan dated 14 April 2014 “On the implementation of the National Action Plan 2011-2015”; the preparation of civil claims for the issuance of protection orders and emergency protection orders; follow-up of the implementation of the domestic courts’ decisions; the institution of criminal proceedings against anyone breaching the protection orders; cooperation with other institutions and civil society organisations; various campaigns in different cities in Albania; and the training of police officers. 146. Turning to the present case, the Government submitted that the investigation had been effective and thorough, the applicant having been able to make effective use of all the remedies for the realisation of her rights. The prosecutor had started the investigation immediately and had undertaken several investigative actions. The prosecutor had also arrested the applicant’s former husband. The applicant had not challenged the prosecutor’s decision staying the investigation. The investigation had been stayed for reasons that were not dependent on the parties’ behaviour. The authorities had not denied the applicant her right to information and cooperation during the investigation. It had been the applicant who had not given proper assistance to the authorities. 2. The Court’s assessment (a) Substantive aspect 147. The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III). This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Mastromatteo v. Italy [GC], no. 37703/97, § 67, ECHR 2002 ‑ VIII). It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998 ‑ VIII; Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 244, ECHR 2011; and Fernandes de Oliveira v. Portugal [GC], no. 78103/14, § 108, 31 January 2019). 148. Bearing in mind the difficulties inherent in policing modern societies, the unpredictability of human conduct, and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation to take preventive operational measures must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every alleged risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual resulting from the criminal acts of a third party. Where the Court finds that the authorities knew or ought to have known of that risk, it must assess whether they took measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see, among many other authorities, Osman, § 116; Fernandes de Oliveira, § 110; and Nicolae Virgiliu Tănase, § 136, all cited above). 149. In the light of the foregoing, the Court must establish whether there existed an effective legislative framework in Albania at the time and whether the authorities knew or ought to have known of the existence of a real and immediate risk to the life or physical integrity of the applicant. 150. The Court observes at the outset that the facts of the case concern a serious acid attack on the applicant perpetrated by an unidentified individual. The Court notes that in Albania a criminal offence is subject to public prosecution, unless it falls into the category of crimes subject to private prosecution. At the relevant time, the Criminal Code provided for a number of offences committed against a person’s life or health. These offences, including that provided for in Article 88 of the Code, under which the prosecutor opened the criminal investigation into the acid attack, are subject to investigation by the prosecutor of his own motion (see also paragraph 63 above). The Court is satisfied that, in the absence of any arguments by the applicant that the criminal-law provisions were ineffective, there existed an effective legislative framework in Albania at the relevant time concerning crimes against life and health. The Court further notes, although not relevant to the present case, that, following legislative amendments in 2012 and 2013, the Criminal Code contains specific provisions proscribing domestic violence and battery, and criminalising as an aggravating circumstance the commission of another offence during or after a court protection order given in relation to the occurrence of domestic violence (see paragraphs 65 and 66 above). 151. The Court further notes that the applicant suspected that her former husband had been the assailant behind the acid attack, bearing in mind also the domestic violence to which she alleged she had been subjected in the past. The applicant complained about her former husband’s violence against her for the first time when she made the statement before the district prosecutor after the acid attack on 29 July 2009. The applicant’s statement was corroborated by the applicant’s family members. However, it does not appear that the applicant at any time before the attack brought to the authorities’ attention any risks posed to her life by her former husband, which would have triggered the authorities’ positive obligation to take preventive measures or other reasonable steps to protect the applicant’s life (compare and contrast Osman, cited above, and Civek v. Turkey, no. 55354/11, 23 February 2016). In the Court’s view, in the circumstances of the present case, the Court cannot see how the State authorities could be held responsible for not having prevented the attack against the applicant. 152. It follows that there has been no violation of Article 2 of the Convention with regard to the authorities’ positive obligation to protect the applicant’s life and physical integrity. (b) Procedural aspect 153. The Court observes that the positive obligation of the State to safeguard the lives of those within its jurisdiction requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and, where appropriate, the identification of those responsible with a view to their punishment (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 172, 14 April 2015). Whenever there are any doubts about the occurrence of domestic violence or violence against women, special diligence is required of the authorities to deal with the specific nature of the violence in the course of the domestic proceedings (see Volodina v. Russia, no. 41261/17, § 92, 9 July 2019). 154. A requirement of promptness and reasonable expedition is implicit in the context of an effective investigation within the meaning of Article 2 of the Convention (see, among many other authorities, Talpis v. Italy, no. 41237/14, § 106, 2 March 2017). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating any use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of tolerance of unlawful acts (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 237, 30 March 2016). In addition, the investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests (see Giuliani and Gaggio, cited above, § 303). 155. The Court will now examine whether the investigation carried out by the State authorities met the requirements of the procedural limb of Article 2 of the Convention. It will do so by having regard to the general situation of women in Albania in which the acid attack occurred and the authorities’ response in investigating the incident. 156. The Court notes that, since at least 2003, international reports in respect of Albania have repeatedly pointed out the high prevalence of violence against women (see paragraphs 108-24 above). Moreover, the national reports lend support to the view that between 2007 and 2013 violence against women was a widespread problem (see paragraphs 100-07 above). Between 2006 and 2012 the international reports further noted that violence against women was under-reported, under-investigated, under-prosecuted and under-sentenced. They suggested that the police and prosecuting authorities manifested an ineffectual approach to violence against women on the grounds of “social attitude and cultural values” and that a climate of leniency or impunity prevailed towards perpetrators of violence against women (see paragraphs 113, 117 and 120-22 above). In its 2010 Concluding Observations, the CEDAW Committee recommended, among other things, that “public officials, especially law enforcement officials [and] members of the judiciary” become fully “sensitized to all forms of violence against women”. In the light of the foregoing, the Court considers that, at the time of the attack, there existed prima facie a general climate in Albania that was conducive to violence against women. Moreover, the 2017 GREVIO evaluation report noted that domestic violence exceeded “all other crimes as the criminal offence with the largest number of victims” (see paragraph 109 above). 157. Where an attack happens in a general climate as described above, the investigation assumes even greater importance and the investigative authorities should be more diligent in conducting a thorough investigation, in order to secure the effective implementation of the domestic laws which protect the right to life. Such diligence to investigate, among other things, an acid attack – which, according to the CEDAW Committee and other reports referred to in paragraphs 93-99 above, may be a practice of “gender ‑ based violence” against women – has been reiterated in General Recommendation no. 19, according to which “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation”, as has been firmly re-established in General Recommendation no. 35 (see paragraphs 82 and 86, as well as paragraph 89 above). 158. Turning to the effectiveness of the investigation in the present case, the Court notes that an investigation into the acid attack was opened by the prosecutor and that several investigative actions were carried out in respect of E.A., upon whom a compulsion order was imposed. His apartment was searched and several items owned by him were seized. Further investigative steps comprising the following measures were undertaken: an on-site examination was carried out, several persons were questioned, footage from the video cameras of two nearby banks was obtained and examined, forensic reports were obtained and other expert reports were ordered. Nevertheless, at no point were the authorities able to establish the nature of the substance found in the container and on the applicant’s clothes. No chemical or toxicology expert report was obtained as the Faculty of Natural Sciences and the Institute of Scientific Police either lacked the necessary specialist equipment or it was not within their competence to compile such reports (see paragraphs 30-31 above). 159. In this regard, it is difficult for the Court to accept that an investigative measure of crucial importance for the case, namely an expert report to enable the identification of the substance used to attack the applicant, was not carried out with due expedition and determination. It is up to the domestic authorities to sort out the issues of competence or to establish specialised institutions to carry out such procedural steps which are decisive for the progress of the investigation and to meet the procedural obligations under Article 2 of the Convention. 160. The Court considers that the circumstances of the attack on the applicant – which has the hallmarks of a form of gender-based violence – should have incited the authorities to react with special diligence in carrying out the investigative measures. Whenever there is a suspicion that an attack might be gender-motivated, it is particularly important that the investigation is pursued with vigour. 161. Lastly, the Court notes that the final decision in the case – that of 2 February 2010 to stay the investigation, which was not amenable to appeal (see paragraph 140 above) – does not provide a definite answer as to the nature of the substance found in the container and on the applicant’s clothes. Moreover, despite the applicant’s repeated enquiries about the progress of the investigation, she was not given any information or documents in response. She could not therefore challenge any investigative actions (or omissions) or request the authorities to take other measures (see Pihoni, cited above, § 95). Nor could she bring a claim for damages in the absence of an identified perpetrator (see paragraph 138 above). 162. Accordingly, the criminal investigation in question, which has been stayed since 2010 by the prosecutor, cannot be described as an effective response by the authorities to the acid attack. There has thus been a violation of Article 2 of the Convention as regards the State’s procedural obligation. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 163. The applicant also complained about the authorities’ failure to provide psychotherapy or rehabilitation treatment, and about the absence of financial compensation. She relied on Article 8 of the Convention, the relevant part of which reads as follows: “1. Everyone has the right to respect for his private ... life ...” 164. The Government did not submit any particular observations. 165. The Court considers, on the basis of the material submitted to it, that there is no appearance of any violation in this regard, and therefore rejects this complaint as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 166. The applicant complained of a violation of Article 13 of the Convention taken in conjunction with Article 2 in view of the fact that she could not challenge the prosecutor’s acts and that she could not apply for compensation for the actual attack. 167. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 168. As regards the applicant’s inability to challenge the prosecutor’s acts, the Court considers that this complaint is linked to the one examined above under Article 2 of the Convention and must therefore likewise be declared admissible. However, having regard to its findings under Article 2 (see paragraphs 161 and 140 above), it is not necessary to examine the merits of this complaint. 169. As regards the possibility for the applicant to obtain compensation from the perpetrator, the Court also considers that this complaint is linked to the one examined under Article 2 above and must therefore likewise be declared admissible. However, having regard to its findings under Article 2 (see paragraphs 161 and 138 above), it is not necessary to examine the merits of this complaint. 170. As regards the possibility for the applicant to obtain compensation from the State, the Court observes that the proceedings relating to her claim for damages were discontinued by the Tirana District Court on 30 May 2013 because the applicant and her lawyer had failed to put in an appearance (see paragraph 53 above). The Court notes that the applicant did not provide any explanation or any evidence that the reason for her failure to appear in the court hearings was related to her inability to pay court fees. Nor did she submit that the District Court had dismissed her request for exemption from the requirement to pay court fees before deciding to discontinue the proceedings. In any event. the applicant’s claim for damages had not been quantified, in respect of which court fees would be determined as a percentage of the claim. Accordingly, in the absence of any substantiation, this part of the complaint must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. ALLEGED VIOLATION OF ARITCLE 14 OF THE CONVENTION 171. Lastly, the applicant complained under Article 14 of the Convention that the authorities had remained passive even though she had voiced suspicions regarding her former husband. The authorities’ actions had shown that they were discriminating against her because of her gender. 172. Having regard to the fact that the Court has already examined the circumstances of this case under Article 2 of the Convention (see, in particular, paragraphs 156 and 157 above), it does not find it necessary to examine the admissibility or merits of this complaint. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 173. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 174. The applicant claimed 3,730.20 euros (EUR) in respect of pecuniary damage ‒ consisting of the expenses the applicant had incurred for her treatment in Italy ‒ and 4,938,469 Albanian leks (ALL) (approximately EUR 36,452) in respect of loss of profits, this amount representing her salary for a period of one year. The applicant further claimed ALL 9,890,004 (approximately EUR 73,000) in respect of non ‑ pecuniary damage consisting of: ALL 4,945,002 in respect of damage to her physical and psychological integrity; ALL 2,472,501 in respect of the pain and suffering she had endured; and ALL 2,472,501 in respect of harm to her quality of life. The applicant submitted an expert report according to which the calculation was based on the unifying decision of the Supreme Court of 14 September 2007 (see paragraph 73 above). 175. The Government argued that the applicant had not submitted a civil claim for damages. The expert report had been based on the Albanian insurance law. They therefore requested the Court to reject her claims as unsubstantiated. 176. The Court notes that the rule that domestic remedies should be exhausted does not apply to just satisfaction claims submitted to the Court under Article 41 of the Convention (see De Wilde, Ooms and Versyp v. Belgium (Article 50), 10 March 1972, §§ 15-16, Series A no. 14, and Salah v. the Netherlands, no. 8196/02, § 67, ECHR 2006 ‑ IX). 177. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant, on an equitable basis, EUR 12,000 in respect of non-pecuniary damage as a result of the violation found on account of the ineffectiveness of the investigation. B. Costs and expenses 178. The applicant also claimed EUR 1,500 for her representation before the Court, as well as EUR 1,220 and ALL 70,150 (approximately EUR 518) in respect of translation costs and administrative and other costs and expenses before the domestic courts and the Court. 179. The Government did not submit any particular comment. 180. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Gjyli v. Albania, no. 32907/07, § 72, 29 September 2009). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,720 covering costs under all heads. C. Default interest 181. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 2 (right to life) of the Convention in its substantial aspect, finding that the Albanian State could not be held responsible for the attack. It noted in particular that, if the State had been aware of a risk to the applicant, it would have been its duty to take preventive measures. In the present case, however, the national authorities had only found out about the violent behaviour of the applicant’s former husband after the incident. On the other hand, the Court held that there had been a violation of Article 2 in its procedural aspect, finding that the authorities’ response to the acid attack had been ineffective. In this respect, it noted in particular that the investigation into the attack, which had had the hallmarks of gender-based violence and therefore should have incited the authorities to react with special diligence, had not even been able to identify the substance thrown over her. The investigation was moreover stayed in 2010, without identifying the person responsible, and the applicant had not been given any information about its progress since, despite her repeated enquiries. |
765 | Freedom of expression | RELEVANT LEGAL FRAMEWORK AND PRACTICE 18. The relevant provisions of the Penal Code (Straffeloven ) read as follows: Section 21 (1) Acts aimed at inciting or assisting the commission of an offence are punishable as attempts if the offence is not completed. (2) The penalty prescribed for an offence may be reduced for attempts, especially where an attempt reflects little strength or persistence of criminal intent. (3) Unless otherwise provided, attempts will only be punished if the offence is punishable by imprisonment for a term exceeding four months. Section 23 (1) The penalty provided for an offence applies to everybody who is complicit in the act by incitement, aiding or abetting. The punishment may be reduced where a person intended only to provide minor assistance or support an intent already formed, and where the offence has not been completed or intentional complicity failed. (2) The punishment may also be reduced where a person is complicit in the breach of a special duty to which he is not subject. (3) Unless otherwise provided, the punishment for complicity in offences that do not carry a sentence of imprisonment for a term exceeding four months may be remitted where the accomplice intended only to provide minor assistance or support an intent already formed, and where his complicity was due to negligence. Section 239 Any person who kills another at such other person’s explicit request is sentenced to imprisonment for a term not exceeding three years. Section 240 Any person who assists someone in deliberately ending his life is sentenced to a fine or imprisonment for a term not exceeding three years. 19. Assisted suicide has been criminalised since 1930. Section 240 of the Penal Code was given its current wording by Act No. 218 of 31 March 2004. 20. In November 2004, the Ministry of Justice requested the Standing Committee on the Criminal Code ( Straffelovrådet ), which is an advisory body tasked with making recommendations on legislative issues related to criminal law, issues of principle relating to the stipulation of administrative criminal law provisions and the implementation in practice of crime policy measures, to consider the issue of whether to criminalise also general encouragement of suicide or suicide “recipes” not aimed at specific persons. In its Report No. 1462/2005 the said committee did not recommend the criminalisation of general encouragement to suicide. In respect of the scope of section 240 of the Penal Code it stated as follows: “ 2.2.1. It is not a punishable offence to attempt to take one’s own life, but it is a punishable offence under section 240 of the Penal Code to assist another person in ending his or her life. The maximum sentence is a fine or imprisonment for a term not exceeding three years. The offence is consummated when the victim dies. Depending on the circumstances, it is possible to sentence a person for an attempt at assisting another person in ending his or her life, see section 240, read with section 21, of the Penal Code. Attempts comprise any act aimed at inciting or assisting in the commission of an offence, see pp. 119ff of The Annotated Criminal Code ( Den kommenterede straffelov ) (on General rules). The question is whether section 240 only applies to physical and mental assistance of a qualified nature, or whether in accordance with the general Danish law rule on complicity set out in section 23 of the Penal Code, the provision also applies if the offender, by incitement, aiding or abetting, deliberately assists a particular person in committing suicide, see pp. 206ff (on General rules) and p. 314 (on Special rules) of The Annotated Criminal Code. For an act to be punishable under section 240, it is required in any circumstances that the offender must have performed a specific act of assistance with the intent that one or more specific persons commit suicide. Encouragement of suicide and descriptions of methods to commit suicide do not fall within the scope of section 240 if not directed at specific persons. Therefore, the presentation or dissemination of suicide recipes through Internet websites or the like cannot normally be punished under section 240. As mentioned above, a person can be sentenced for assistance under section 240 of the Criminal Code only if the purpose of the offence of assistance is a specific act of assistance. [...]”. 21. The issue of euthanasia and assisted suicide has regularly been the subject of public and political debate in Denmark, but so far there has not been a political majority in Parliament in favour of amending section 240 of the Penal Code. 22. The issue of euthanasia and assisted suicide has also been considered by the Council of Ethics ( Det Etiske Råd ). The Council of Ethics is an independent body established in 1987 to advise Parliament, ministers and public authorities on ethical issues in health care while respecting the integrity and dignity of humans and future generations. In 1996, 2003 and 2012, the Council of Ethics published reports and recommendations on euthanasia and assisted suicide. A large majority of the seventeen members of the Council was against the legalisation of euthanasia and assisted suicide in all three reports. The Council has balanced the considerations, on the one hand factors like the right to personal autonomy and on the other hand factors like the sanctity of human life as a fundamental ethical standard and the incompatibility of euthanasia with an ethically appropriate relationship between a physician and a patient. The Danish Council of Ethics discussed the subject again in 2021 on the basis of a judgment delivered by the German Federal Constitutional Court in February 2020, which had ruled that the maintenance of a prohibition of assisted suicide was unconstitutional. 23. In 2018 Parliament amended the Danish Health Care Act ( sundhedsloven ), enhancing patients’ right to refuse treatment, including life-sustaining treatment, which means that a patient who has come to terms with circumstances and does not want any life-sustaining treatment can refuse the treatment offered even though the consequence of withdrawing from life-sustaining treatment is that the patient will die right away. Moreover, a system of living wills has been set up under which individuals can make binding advance decisions to refuse life-sustaining treatment in specific situations that may occur some time in the future if they become permanently incompetent and are no longer able to exercise their right to personal autonomy. Prior to the adoption of the amendment bill, it was discussed at the readings in Parliament what is a dignified death and what is the right to personal autonomy, and it was discussed that it must be ensured that health care professionals can discontinue life-sustaining treatment without fearing being charged with homicide on request. 24. Finally, in December 2020, all parties in Parliament concluded a political agreement to roll out an IT system that was to support a future right of elderly, feeble citizens to ask their physician to write a do-not-resuscitate order in the event that they suffer from heart failure. It is expected that a bill granting this right will be introduced in 2021/2022. RELEVANT INTERNATIONAL and european MATERIALS 25. Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe recommended, inter alia, as follows (paragraph 9): “... that the Committee of Ministers encourage the member States of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects: ... c. by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while: i. recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member States, in accordance with Article 2 of the European Convention on Human Rights which states that ‘no one shall be deprived of his life intentionally’; ii. recognising that a terminally ill or dying person’s wish to die never constitutes any legal claim to die at the hand of another person; iii. recognising that a terminally ill or dying person’s wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.” COMPARATIVE LAW 26. In 2012 a comparative research in respect of forty-two Council of Europe Member States (see Koch v. Germany, no. 497/09, § 26, 19 July 2012) showed that in thirty-six countries (Albania, Andorra, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, France, Georgia, Greece, Hungary, Ireland, Latvia, Lithuania, the Former Yugoslav Republic of Macedonia, Malta, Moldova, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russia, San Marino, Spain, Serbia, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom) any form of assistance to suicide was strictly prohibited and criminalised by law. In Sweden and Estonia, assistance to suicide was not a criminal offence; however, Estonian medical practitioners were not entitled to prescribe a drug in order to facilitate suicide. Conversely, only four member States (Switzerland, Belgium, the Netherlands and Luxembourg) allowed medical practitioners to prescribe lethal drugs, subject to specific safeguards. 27. The Government have submitted the following information about the current legislation in 20 member States, including Denmark, Norway, Sweden, France, the United Kingdom, Turkey, Bulgaria, Iceland, Ireland, Portugal, Spain, Luxembourg, Belgium, Switzerland, Germany, Italy, Austria, Estonia, the Netherlands and Finland. 28. Euthanasia is allowed in a number of countries under certain specified conditions, including Spain, the Netherlands, Luxembourg and Belgium. In Spain, following the recent adoption of an Act to this effect, it is now possible for patients suffering from a serious and incurable disease or a serious, chronic and disabling disorder causing unbearable suffering to request that health care professionals administer euthanasia. It is further required that an assessment must be performed by at least two external experts appointed by a regional evaluation commission. Other than the cases that have now been made lawful, all active contributions to or coordination of actions necessary to cause another person’s death are criminalised in Spain. The Netherlands have criminalised euthanasia and assisted suicide. Physicians are, however, exempt from prosecution if six criteria have been met, including that the patient endures unbearable suffering without any prospect of improvement, that the patient has been examined by at least one external physician and that the euthanasia is performed in accordance with the existing health care guidelines. In Luxembourg and Belgium, euthanasia is also lawful under certain conditions, including that the patient’s health problems are ‘incurable’ and the patient suffers from unbearable physical/mental pain, that the patient must have had a number of consultations with his or her physician on the subject and that the physician must have consulted another physician as well as a close relative of the patient (appointed by the patient). 29. In Portugal, euthanasia continues to be criminalised, but in January 2021 the Portuguese Parliament adopted a bill intended to make euthanasia and physician-assisted suicide lawful for terminally ill and wounded persons. However, the Portuguese Constitutional Court quashed the bill because it found it too unspecific. The ruling party has now introduced a revised bill, which takes into account the criticism raised by the Constitutional Court. If the bill is adopted by Parliament, the President may submit the bill to the Constitutional Court for review as part of the enactment process. 30. In a number of countries, euthanasia is criminalised, whereas assisted suicide is lawful in certain circumstances. Those countries are Sweden, Switzerland, Germany, Italy, Austria, Estonia and Finland. Assisted suicide is not criminalised in Sweden, but the Swedish Parliament recently adopted an amending Act making it a punishable act in certain circumstances to encourage or otherwise exert influence on another person to take his or her own life. In pursuance of this amending Act, any person who incites or otherwise exerts influence on another person to take his or her own life is punished for encouragement of suicide or negligent incitement to suicide. This could be to introduce a suicidal person to a razor blade or to give detailed instructions to a person about a particular method of committing suicide, for example by sending him or her a so-called suicide manual. The exchange of general information on suicide issues has not been criminalised. In Switzerland, assisted suicide is lawful and is offered by various organisations. However, assisted suicide is punished by imprisonment or a pecuniary penalty if the person assisting in the suicide is motivated by self-serving ends. In Germany, assisted suicide has been decriminalised as a consequence of a judgment of the Federal Constitutional Court. Similarly, assisted suicide has been decriminalised in Austria since 31 December 2021 as a consequence of a decision made by the Constitutional Court of Austria. In Italy, both euthanasia and assisted suicide are criminalised. However, the case law of the Italian Constitutional Court has opened up for an exception in connection with life-sustaining treatment of an incurable disease under certain specified conditions, including if the person is kept alive by the treatment of vital functions while suffering from an incurable disease that causes unbearable physical or mental pain and if a public national health authority has granted an approval following consultation of the local committee on ethics. 31. Both euthanasia and assisted suicide are criminalised in Denmark, Norway, France, Iceland, Bulgaria and Turkey. However, in Denmark and Norway the distribution of general information on suicide methods is not criminalised. In France, the sanction for all kinds of propaganda for and/or marketing of products or methods that are recommended as means to commit suicide is imprisonment for a term of three years and a fine in the amount of EUR 45,000. In the United Kingdom, a bill on assisted dying was examined by the House of Lords on 22 October 2021, allowing adults diagnosed with a terminal illness, under certain circumstances, to submit an application for assisted dying to the High Court. General information on suicide, for example on a website, may lead to the imposition of a sentence. 32. In Ireland, both euthanasia and assisted suicide are criminalised, but a bill has been introduced in the Lower House of the Irish Parliament to legalise voluntary euthanasia and assisted suicide for terminally ill persons. The bill is currently being considered by the Irish Committee on Legal Affairs, which has recommended that a specific committee be set up to draft the bill, considering the serious nature of the subject. The distribution of general information on suicide methods is not criminalised in Ireland. THE LAW 33. The applicant complained that the Supreme Court’s judgment of 23 September 2019 breached his right to freedom of expression guaranteed by Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility 34. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits 1. Parties’ arguments 35. The applicant submitted, inter alia, that the case concerned, on the one hand, the general right to receive information on assisted suicide, a matter in which the Government’s previous wide margin of appreciation should now be decreased due the growing legalisation of assisted suicide in Europe and the increasing shift in public opinion on this subject. 36. On the other hand, the case concerned the applicant’s right to freedom of expression. In essence the applicant had been convicted for orally providing individuals with information, which he could legally provide in writing to the general public in his guide on suicide. He referred to the finding of the minority of the Supreme Court in respect of count 3). Such an interference with his right to freedom of expression, which did not relate to the actual subject of the expression or information but rather to how and to whom it was provided, could not be considered proportionate. 37. The Government pointed out, inter alia, that encouragement of suicide and descriptions of methods to commit suicide fell outside the scope of section 240 of the Penal Code if it was not directed at specific persons. However, it was punishable under the said provision if the offender performed a specific act of assistance with the intent that an individual commit suicide. Thus, the guide to commit suicide, prepared by the applicant, was legal, whereas it was illegal for him to provide specific advice to particular persons on how they could commit suicide. In addition, under counts 1) and 2), the Supreme Court had unanimously found that, besides having given specific advice, the applicant had also performed specific acts, by prescribing or procuring, via others, the medication necessary for the relevant persons to commit suicide. 38. In the Government’s view, the Court should take into account that the case concerned difficult ethical and moral issues on which there was no consensus among the member States. Moreover, the current state of the law expressed the legislature’s deliberate choice after regular review, most recently in 2018. Furthermore, the national courts had thoroughly reviewed the compatibility of the interference with the Convention, in accordance with the guidelines given by the Court in its case-law, for which reason States Parties should be allowed a wide margin of appreciation in determining whether assisted suicide should be allowed under national law. 39. Ordo Iuris Institute for Legal Culture submitted observations on, among other things, assisted suicide laws in Europe and international professional standards regarding physician-assisted suicide. 2. The Court’s assessment (a) Applicable principles 40. The general principles regarding the right to freedom of expression within the meaning of Article 10 of the Convention are well-settled in the Court’s case-law, and summarised, for example, in Perinçek v. Switzerland [GC], no. 27510/08, §§ 131-136, 146-151, and 196-197, ECHR 2015 (extracts). 41. Moreover, it is established case-law that the national authorities enjoy a wide margin of appreciation in matters of morals, particularly in an area such as the present which touches on matters of belief concerning the nature of human life (see, among others, Open Door and Dublin Well Woman v. Ireland, 29 October 1992, § 68, Series A no. 246 ‑ A). 42. In addition, the quality of the parliamentary and judicial review of the necessity of a general measure, such as in the present case the criminalisation of assisted suicide, is of particular importance, including to the operation of the relevant margin of appreciation (see, among others, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts); Correia de Matos v. Portugal [GC], no. 56402/12, §§ 117 and 129, 4 April 2018; and M.A. v. Denmark [GC], no. 6697/18, §§ 147-149, 9 July 2021). 43. A further factor which has an impact on the scope of the margin of appreciation is the existence or not of common ground between the national laws of the contracting states (see, among others, Parrillo v. Italy [GC], no. 46470/11, §§ 176-179, ECHR 2015 and M.A. v. Denmark, cited above, §§ 151-160). 44. Finally, the Court’s fundamentally subsidiary role in the Convention protection system has an impact on the scope of the margin of appreciation. The Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto, and in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the Court. Through their democratic legitimation, the national authorities are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, inter alia, Lekić v. Slovenia [GC], no. 36480/07, § 108, 11 December 2018; see also Protocol No. 15, which entered into force on 1 August 2021). (b) Application of these principles to the present case (i) Prescribed by law and legitimate aim 45. It is not in dispute between the parties that the applicant’s conviction constituted an interference, prescribed by law, namely section 240 of the Penal Code, which pursued the legitimate aims of the protection of health and morals and the rights of others. The Court notes that regarding counts 1) and 2) the applicant was convicted not only for having provided guidance, but also for having, by specific acts, procured medications for the persons concerned (see paragraphs 13 and 14 above). The Court therefore finds reason to doubt whether in respect of these counts there was indeed an interference with the applicant’s right to freedom of expression within the meaning of Article 10. Nevertheless, in the following it will proceed on the assumption that there was. (ii) “Necessity in a democratic society” 46. Assisted suicide has been criminalised in the Danish legislation since 1930. The current wording of section 240 of the Penal Code is from 2004. For an act to be punishable under section 240, it is required that the offender must have performed a specific act of assistance with the intent that one or more specific persons commit suicide. Encouragement of suicide and descriptions of methods of committing suicide do not fall within the scope of section 240 if not directed at specific persons. Therefore, the presentation or dissemination of suicide recipes through Internet websites or the like cannot normally be punished under section 240 (see paragraph 20 above). 47. In the present case, the Court is not required to determine whether the criminalisation of assisted suicide is justified. Under the Court’s well ‑ established case-law, in proceedings originating in an individual application under Article 34 of the Convention, its task is not to review domestic law in abstracto. Instead, it must determine whether the manner in which it was applied to, or affected, the applicant gave rise to a violation of the Convention. It can thus only review whether or not the application of section 240 of the Penal Code in the case of the applicant was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention (see, inter alia, Perinçek v. Switzerland, cited above, § 226 ). 48. The answer to the question whether such a necessity exists depends on the need to protect the “health and morals” and “the rights of others” in issue by way of criminal law measures. 49. Turning first to its case-law, the Court found in Haas v. Switzerland (no. 31322/07, § 54, ECHR 2011) that Article 2 of the Convention, which creates for the authorities a duty to protect vulnerable persons, even against actions by which they endanger their own lives, also obliges the national authorities to prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved. 50. In Koch v. Germany (no. 497/09, § 51-52, 19 July 2012, and the references cited therein), the Court acknowledged that an individual’s right to decide in which way and at which time his or her life should end, provided that he or she was in a position freely to form his or her own will and to act accordingly, was one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention. 51. Moreover, in Gross v. Switzerland (no. 67810/10, §§ 58-60, 14 May 2013) the Court considered that the applicant’s wish to be provided with a dose of sodium pentobarbital allowing her to end her life fell within the scope of her right to respect for her private life under Article 8 of the Convention. It will be recalled that the case was referred to the Grand Chamber, which on 30 September 2014 declared it inadmissible for abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention. 52. There is no support in the Court’s case-law, however, for concluding that a right to assisted suicide exists under the Convention, including in the form of providing information about or assistance that goes beyond providing general information about suicide (compare, under Article 2, Pretty v. the United Kingdom, no. 2346/02, § 40, ECHR 2002 ‑ III). Accordingly, as the applicant was not prosecuted for providing general information about suicide, including the guide on suicide that had been made publicly available, but was prosecuted for having assisted suicide through specific acts, the Court finds that the present case is not about the applicant’s right to provide information that others under the Convention had a right to receive. 53. Before the Supreme Court, the applicant submitted that he had only assisted A, B and C by providing guidance and information, which was already legally accessible on the internet, and which failed to reach the threshold under section 240 of the Penal Code. He relied specifically on Article 10 of the Convention. 54. As regards counts 1) and 2) the Supreme Court found unanimously that the applicant had not only provided guidance, but had also, by specific acts, procured medications for the persons concerned, in the knowledge that it was intended for their suicide. Such acts were clearly covered by section 240 of the Penal Code, and implicitly, did not give rise to an issue under Article 10. 55. As regards count 3) it was found established that the applicant, in emails exchanged with C, had advised her about suicide methods, including by confirming the choice of medications and by confirming that it was a good idea to combine them with a plastic bag and by writing: “If you are able to go through with it, you will be 100% certain. Remember in that case that it is necessary to put a rubber band around the neck.” 56. On the basis of an interpretation of section 240, in the light notably of the preparatory works, the legislative review, including Report No. 1462/2005 by the Standing Committee on the Penal Code (see paragraph 20 above), and the Convention, the majority of the Supreme Court found the applicant guilty under the said provision in that he had assisted C in a specific and significant way in committing suicide, that his advice was not exempted from punishment because it was based on his lawful general guide on the website of “Physicians in Favour of Euthanasia”, that his specific advice was suited to a greater extent than the general guide to intensifying C’s desire to commit suicide, and that his conviction would not be in breach of Article 10 of the Convention. The applicant was given a suspended sentence of 60 days’ imprisonment. It was taken into account as an aggravating circumstance that to a certain extent the acts had been committed in a systematic manner and that the applicant had been charged on three counts, the last act being committed after he had been provisionally charged by the police for violation of section 240 of the Penal Code. It was considered a mitigating circumstance that the applicant was almost 78 years old. 57. The Court sees no reason to call into question the Supreme Court’s conclusions. It notes that a crucial question was the distinction to be drawn between the legal general guide available on the internet and the specific information provided by the applicant to C. The majority found that the specific information provided by the applicant was “based” on the general guide (see paragraphs 6 and 15 above), and it does not appear that he added any information which did not follow from the general guide. However, the majority also found that the applicant’s specific advice was suited to a greater extent than the general guide to intensifying C’s desire to commit suicide. The Court notes in this respect that C in her first email of 17 July 2018 to the applicant had asked for his assistance, although she had already procured the necessary medication herself and was aware of the existence of the general guide on the internet. Moreover, the applicant and C exchanged at least nine emails in the period from 17 July to 8 August 2018, thus during a period of approximately three weeks. In these circumstances, the Court considers that the reasons relied on by the Supreme Court when finding that the act fell within the scope of section 240 of the Penal Code were relevant and sufficient. 58. The Court also notes that the Supreme Court made a thorough judicial review of the applicable law in the light of the Convention, including the Court’s judgment in Open Door and Dublin Well Woman v. Ireland, cited above, about a restriction of an absolute nature on the provision of information to pregnant women concerning abortion facilities abroad, regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy. The interference concerned services which were lawful in other countries and which could be crucial to a woman’s health and well-being ( ibid., §§ 72-73 ). On that ground alone the Court found that it appeared overbroad and disproportionate (ibid., § 74). In addition, the counsellors neither advocated nor encouraged abortion, but confined themselves to an explanation of available options. In the present case, it was undisputed that the applicant could legally publish his guide “Medicines suited for suicide” on the internet and could encourage to suicide if not directed at specific persons. The charges concerned the applicant’s concrete assistance or advice to three specific persons, A, B and C, on how to commit suicide. The restriction in section 240 of the Penal Code was imposed in order to protect such persons’ health and well-being, by preventing other persons from assisting in their suicide. The case at hand thus differs significantly from Open Door and Dublin Well Woman v. Ireland. Having regard to the above, the Court considers that the quality of the judicial review of the disputed general measure and its application in the present case militates in favour of a wide margin of appreciation. 59. The Court notes that a criminal conviction is a serious sanction, having regard to the existence of other means of intervention and rebuttal, particularly through civil remedies (see, for example, Perinçek v. Switzerland, cited above, § 273). In the circumstances of the present case, however, the Court does not find the conviction and the sentence excessive, bearing also in mind that the sentence was suspended. 60. Another element, which speaks in favour of a wide margin of appreciation in the present case is the fact that the subject of assisted suicide concern matters of morals (see paragraph 41 above) and that the comparative law research (set out in paragraphs 26 to 32 above) enables the Court to conclude that the Member States of the Council of Europe are far from having reached a consensus on this issue (see paragraph 43 above; see also, for example, Haas v. Switzerland, cited above, § 55). 61. In the light of all the above-mentioned considerations, the Court considers that the reasons relied upon by the domestic courts, and most recently the Supreme Court in its judgment of 23 September 2019, were both relevant and sufficient to establish that the interference complained of can be regarded as “necessary in a democratic society”, proportionate to the aims pursued, namely the protection of health and morals and the rights of others, and that the authorities of the respondent State acted within their margin of appreciation, having taken into account the criteria set out in the Court’s case ‑ law. 62. There has accordingly been no violation of Article 10 of the Convention. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that, overall, the domestic courts’ reasons for taking the decision they did – protection of health and morals and the rights of others – had been legitimate, and they had acted within the wide discretion (“margin of appreciation”) afforded to the authorities in this particular case. It noted, in particular, that assisted suicide had been illegal in Denmark since 1930, and that the relevant law provided that a specific act of assistance to commit suicide had to have taken place for conviction. However, the Court was not called on to determine whether the criminalisation of assisted suicide was justified, only whether it was “necessary in a democratic society” in this case. It noted in that regard that the authorities have a duty to protect vulnerable members of society. The Court also emphasised that no right to assisted suicide existed under the Convention. Taking note of the Danish Supreme Court’s final conclusions and seeing no reason to disagree with them, in particular that the applicant’s advice, although based on his guide to suicide, had pushed one of the individuals towards suicide, the Court considered that, although publication of the guide had been legal, the case had rested on the specific advice given to individuals. It held that neither the conviction nor the sentence had been excessive in this case. |
980 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | II. RELEVANT DOMESTIC LAW 37. The relevant domestic law concerning pre-trial detention was set out in the Court's judgment in Sarban v. Moldova, no. 3456/05, § 52, 4 October 2005. 38. It appears from the photographs submitted by the Government that in the lawyer-client meeting room of the CFECC detention centre, the space for detainees is separated from the rest of the room by a door and a window. The window appears to be made of two plates of glass joined together. Both plates have small holes pierced with a drill; however the holes do not coincide, so that nothing can be passed though the window. Moreover, there is a dense green net made either of thin wire or plastic between the glass plates, covering the pierced area of the window. There appears to be no space for passing documents between the lawyer and his client. 39. Between 1 and 3 December 2004 the Moldovan Bar Association held a strike, refusing to attend any proceedings regarding persons detained in the CFECC detention centre until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients. The demands of the Bar Association were refused (see Sarban, cited above, § 126). 40. On 26 March 2005 the Moldovan Bar Association held a meeting at which the President of the Bar Association and another lawyer informed the participants that they had taken part, together with representatives of the Ministry of Justice, in a committee of inspection of the CFECC detention centre. During the inspection they had asked that the glass wall be taken down in order to check that there were no listening devices. They had pointed out that it would only be necessary to remove a few screws and proposed that all the expenses linked to the verification be covered by the Bar Association. The CFECC administration had rejected the proposal. THE LAW 41. The applicant complained under Article 5 § 1 of the Convention that his detention had been imposed in the absence of a reasonable suspicion that he had committed an offence, and under Article 18 that his detention had had a purpose other than that provided for in Article 5 § 1 (c). The relevant parts of Article 5 and Article 18 read as follows: “ Article 5 – Right to liberty and security 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...; Article 18 – Limitation on use of restrictions of rights The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 42. He also complained under Article 5 § 3 of the Convention that the courts had not given relevant and sufficient reasons for his detention. The material part of Article 5 § 3 reads: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 43. The applicant also complained under Article 5 § 4 that during the proceedings concerning his detention he and his lawyers had had no access to the materials in his criminal file on the basis of which the courts had ordered his detention. He also submitted that he had not been able to meet his lawyers in conditions of confidentiality and that all the documents which had passed between him and his lawyers had been scrutinised by the prison authorities. Article 5 § 4 of the Convention reads: “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 44. Finally, the applicant complained under Article 34 of the Convention that the refusal to allow his lawyers to see him in conditions of confidentiality had affected his right of petition. The relevant part of Article 34 reads: “...The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” I. ADMISSIBILITY OF THE COMPLAINTS 45. The Court considers that the applicant's complaints raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established. The Court therefore declares the application admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of the application. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION AND OF ARTICLE 1 8 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5 46. The Government maintained that the applicant's detention between 9 August and 19 November 2006 had been motivated by a reasonable suspicion that he had committed offences set out in Articles 195/2 and 328/3 (d) of the Criminal Code, on the ground that he had sent the Ministry of Finance the letter of 25 March 1998 asking it to issue a Treasury bond in Oferta Plus's favour while knowing that the energy supplied to Moldtranselectro with the latter's participation had not been consumed by state institutions. The Government further submitted that the applicant's detention had had no other purpose than that provided for in Article 5 § 1 (c), that is to bring him before the competent legal authority on reasonable suspicion of having committed an offence. 47. The applicant argued the contrary and referred, inter alia, to the Court's findings in paragraphs 138-143 of the Oferta Plus judgment. He argued that his detention had been arbitrary and that the Government had not contested the fact that an investigator had made his release conditional on his making declarations desired by the Government. He concluded that the facts of this case were very similar to those in the case of Gusinskiy v. Russia ( no. 70276/01, ECHR 2004 ‑ IV). 48. The Court reiterates that in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c) it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, pp. 29-30, § 53). Neither is it necessary that the person detained should ultimately have been charged or brought before a court. The object of detention for questioning is to further a criminal investigation by confirming or dispelling suspicions which provide the grounds for detention (see Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55). However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient. The words “reasonable suspicion” mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, pp. 16-17, § 32). The Court stresses in this connection that in the absence of a reasonable suspicion arrest or detention of an individual must never be imposed for the purpose of making him confess or testify against others or to elicit facts or information which may serve to ground a reasonable suspicion against him. 49. The Court further reiterates that Article 18 of the Convention, like Article 14, does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention. As in the case of Article 14, there may be a violation of Article 18 in connection with another Article, although there is no violation of that Article taken alone. It further follows from the terms of Article 18 that a violation can only arise where the right or freedom concerned is subject to restrictions permitted under the Convention ( Gusinskiy v. Russia, cited above, § 73 ). 50. It is noted that the accusation against the applicant was based on the assertion that while allegedly knowing that Oferta Plus had not paid for energy supplied specifically to state institutions he requested the Ministry of Finance to issue a Treasury bond in Oferta Plus's favour, in breach of the Government's Decision no. 243 (see paragraph 9 above). The Court recalls that in Oferta Plus the accusation against the Chief Executive Officer was “ based on the allegation that the applicant company had not paid for energy supplied specifically to state institutions and had thus fraudulently obtained first the Treasury bond in its favour and later the civil judgments in its favour ” (see Oferta Plus, cited above, § 135). Thus, the accusation against the applicant in the present case is indissociable from that against the Chief Executive Officer of Oferta Plus. Moreover, the criminal proceedings against the applicant and Oferta Plus's CEO and their detention coincided in time, were initiated and dealt with by the same investigators from the CFECC, and were couched in similar terms. It is for these reasons that the Court will rely on its findings in Oferta Plus for the purposes of the present case. 51. In Oferta Plus the Court made the following findings in respect of the charges against the company's CEO : “ 138. Analysing the judgments adopted by the civil courts in the dispute between the applicant company and the Ministry of Finance, the Court notes that it is an established fact that the former had paid over USD 33,000,000 for the electricity imported by Moldova from the Ukraine and that the Treasury bond issued by the Ministry of Finance on 27 March 1998 was intended to cover a small part of that amount. This was confirmed by the civil courts both before and after the proceedings were wrongfully reopened on 12 July 2004 .... 139. Some of the electricity imported to Moldova with the participation of the applicant company was supplied to state institutions. The civil courts established that the applicant company had paid more than MDL 20,000,000 for that electricity. This finding was made by the Plenary Supreme Court in its judgment of 7 May 2001 .... 140. The court rulings which followed the reopening of the proceedings on 12 July 2004 must, in principle, be disregarded, in view of the Court's earlier finding that the reopening was wrongful .... However, it is of some interest to note, for instance, that the Court of Appeal in its judgment of 3 November 2004 found that the applicant company had paid more than MDL 27,000,000 for electricity supplied to state institutions .... The Supreme Court of Justice, in reversing that judgment, on 10 February 2005, did not dispute this finding but made only a general statement that the electricity supplied with the participation of the applicant company had been supplied, inter alia, to state institutions .... 141. In those circumstances, the accusation against C.T. based on the premise that his company had not paid for electricity supplied to state institutions appears to be inconsistent with the above findings of the civil courts. 142. Against this background, the Court notes that C.T. was charged with a criminal offence for the first time after the Government had been informed about the present application .... Later the criminal proceedings were discontinued, but reactivated shortly after the communication of the present case to the Government .... 143. In view of the above, the Court considers that, on the basis of the materials before it, there are sufficiently strong grounds for drawing an inference that the criminal proceedings against C.T. were aimed at discouraging the company from pursuing the present case before the Court. Accordingly, there has been a breach of Article 34 of the Convention. ” 52. In such circumstances, the Court cannot agree with the assertion that the materials of the criminal case against the applicant could lead an objective observer to have a reasonable belief that the applicant may have committed the offence imputed to him. As found in Oferta Plus (see the preceding paragraph), such a belief could not be guided by any objective considerations, having regard to the clear findings in the final judgments of the civil courts. Accordingly, the Court considers that the applicant's detention between 9 August and 19 November 2006 was not based on a reasonable suspicion that he had committed an offence. 53. The Court recalls that the restriction on the right to liberty under Article 5 § 1(c) must be justified by the purpose of that provision. In the instant case, the Government have failed to satisfy the Court that there was a reasonable suspicion that the applicant had committed an offence, with the result that there was no justification for his arrest and detention. Indeed, having regard to its conclusion in paragraph 141 of the Oferta Plus judgment (cited above) the Court can only conclude that the real aim of the criminal proceedings and of the applicant's arrest and detention was to put pressure on him with a view to hindering Oferta Plus from pursuing its application before the Court. It therefore finds that the restriction on the applicant's right to liberty was applied for a purpose other than the one prescribed in Article 5 § 1(c). On that account there has been a breach of Article 18 of the Convention taken in conjunction with Article 5 § 1. III. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 3 and 4 OF THE CONVENTION 54. The applicant complained under Article 5 §§ 3 and 4 of the Convention of a lack of reasons for his detention and that during the proceedings concerning his detention he and his lawyers had had no access to the materials in the criminal file on the basis of which the courts had ordered his detention. He also submitted that he had not been able to meet his lawyers in conditions of confidentiality and that all the documents which had passed between him and his lawyers had been scrutinised by the prison authorities. 55. In view of its finding that the applicant's detention was arbitrary (see paragraphs 52 and 53 above) the Court does not consider it necessary to examine these complaints separately. IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 56. The applicant complained that he had not been allowed to meet in private with his lawyer and had been separated from him by a glass partition without any aperture, preventing normal discussion or work with documents. As a result they had had to shout to hear each other and had not been able to pass documents to each other without involving the criminal investigator or the prosecutor. The applicant had therefore been prevented from signing the application form and the power of attorney himself and it was his wife who had signed them. 57. According to the Government, the glass partition was necessary to protect detainees and lawyers and did not prevent normal communication. The applicant had not provided proof that his discussions with the lawyer had been intercepted, which would be contrary to the law in any case. They further referred to the case of Kröcher and Möller v. Switzerland (no. 8463/78, DR 26, p.40) by way of justification for the glass partition. 58. The Court notes that one of the key elements in a lawyer's effective representation of a client's interests is the principle that the confidentiality of information exchanged between them must be protected. This privilege encourages open and honest communication between clients and lawyers. The Court recalls that it has previously held that confidential communication with one's lawyer is protected by the Convention as an important safeguard of one's right to defence (see, Oferta Plus, cited above, § 145 ). 59. Indeed, if a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see, inter alia, Artico v. Italy, judgment of 13 May 1980, Series A no. 37, § 33). 60. The Court considers that an interference with the lawyer-client privilege and thus with the right of petition guaranteed by Article 34 of the Convention does not necessarily require an actual interception or eavesdropping to have taken place. A genuine belief held on reasonable grounds that their discussion was being listened to might be sufficient, in the Court's view, to limit the effectiveness of the assistance which the lawyer could provide. Such a belief would inevitably inhibit a free discussion between lawyer and client and hamper the client's right to be effectively defended or represented. 61. The Court must therefore establish whether the applicant and the lawyer had a genuine belief held on reasonable grounds that their conversation in the CFECC lawyer-client meeting room was not confidential. It appears from the applicant's submissions that the fear of having his conversations with the lawyer intercepted was genuine. The Court will also consider whether an objective, fair-minded and informed observer would have feared interception of lawyer-client discussions or eavesdropping in the CFECC meeting room. 62. The Court notes that the problem of alleged lack of confidentiality of lawyer-client communications in the CFECC detention centre has been a matter of serious concern for the entire community of lawyers in Moldova for a long time and that it has even been the cause of a strike organised by the Moldovan Bar Association (see paragraph 39 above). The Bar's requests to verify the presence of interception devices in the glass partition were rejected by the CFECC administration (see paragraph 40 above), and that appears to have contributed to the lawyers'suspicion. Such concern and protest by the Bar Association would, in the Court's view, have been sufficient to raise a doubt about confidentiality in the mind of an objective observer. 63. Accordingly, the Court concludes that the applicant and his lawyer could reasonably have had grounds to fear that the conversation in the CFECC lawyer-client meeting room was not confidential. 64. Moreover, the Court notes that, contrary to the Government's contention that the applicant and his lawyer could easily exchange documents, the pictures provided by the Government (see paragraph 38 above) show that this was not the case because of the lack of any aperture in the glass partition. This, in the Court's view, rendered the lawyer's task even more difficult. 65. The Court recalls that a violation of Article 34 was found in Oferta Plus, on the ground, inter alia, that because of the glass partition the applicant could not present its claims under Article 41 of the Convention. 66. In the present case, the effective representation of the applicant before the Court also appears to have been seriously hampered, in such a way that he was unable to sign the application form or the power of attorney (see paragraph 35 above). 67. The security reasons invoked by the Government are not convincing, in the Court's view, since visual supervision of the lawyer-client meetings would be sufficient for such purposes. 68. In the light of the above, the Court considers that the impossibility for the applicant to discuss with his lawyer issues concerning the present application before the Court without being separated by a glass partition affected his right of petition. Accordingly, there has been a violation of Article 34 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 70. The applicant claimed 50,000 euros (EUR) in compensation for the damage caused to him by the violation of his rights. He argued that his arbitrary detention had caused him severe stress and anxiety. The CFECC authorities published a press release on their website and Moldovan National Television presented a report about his arrest on the evening news of 21 August 2006. His image had been tarnished and he felt the consequences of that to the present day. 71. The Government disagreed with the amount claimed by the applicant, arguing that it was excessive in the light of the case-law of the Court, and asked the Court to dismiss the applicant's claim. 72. The Court considers that the applicant must have been caused a certain amount of stress and anxiety as a consequence of the very serious breaches found above. It awards the applicant EUR 10 ,000 in respect of non-pecuniary damage. B. Costs and expenses 73. The applicant claimed EUR 3, 55 5 .58 for legal costs and expenses. He submitted a list of hours worked by his lawyer in preparing the case and the hourly fee which corresponded to a decision of the Moldovan Bar Association adopted on 29 December 2005 recommending the level of remuneration for lawyers representing applicants before international courts. The claim also included the cost of translation and the cost of express mail. 74. The Government considered these claims to be unjustified given the economic realities of life in Moldova. They questioned the number of hours spent by the applicant's lawyer on the case and the fee charged by him. 75. The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Amihalachioaie v. Moldova, no. 60115/00, § 47, ECHR 2004 ‑ ...). 76. In the present case, regard being had to the itemised list submitted by the applicant, the above criteria and the complexity of the case, the Court awards the applicant EUR 2,500. C. Default interest 77. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 5 § 1 of the Convention. It noted in particular that the accusations against the applicant and the Head of Oferta Plus had been the same, their detention had coincided and the proceedings against them had been dealt with by the same Centre For Fighting Corruption and Economic Crimes investigators and worded in the same way. In this judgment, the Court therefore decided to follow the same reasoning as in its judgment Oferta Plus S.R.L. v. Moldova of 19 December 2006 in which it found, in particular, that the accusation against Oferta Plus had appeared to be inconsistent with the findings of the civil courts. Therefore, as found in Oferta Plus S.R.L., the Government had failed to satisfy the Court that there had been a reasonable suspicion that the applicant had committed an offence and there had been no justification for his arrest and detention. Furthermore, the Court could only conclude that the real aim of the criminal proceedings had been to put pressure on the applicant in order to hinder Oferta Plus from pursuing its application before the Court. It therefore held that there had also been a violation of Article 18 in conjunction with Article 5 § 1. |
946 | Freedom of expression | II. Relevant domestic law 25. The first paragraph of the former Article 18 (currently Article 25) of the Constitution provides: "The press shall be free; there shall never be any censorship; no security can be demanded of writers, publishers or printers." 26. The relevant provisions of the Civil Code are worded as follows: Article 1382 "Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it." Article 1383 "Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence." According to legal writers and the case-law, an offence against the criminal law constitutes per se a fault within the meaning of Article 1382 of the Civil Code (see L. Cornelis, Beginselen van het Belgische buitencontractuele aansprakelijkheidsrecht, p. 62, no. 41; judgments of the Court of Cassation of 31 January 1980 ( Pasicrisie 1980, I, p. 622) and 13 February 1988 ( Rechtskundig Weekblad 1988-89, col. 159)). Articles 1382 and 1383 of the Civil Code accordingly provide a basis for civil proceedings for abuse of freedom of the press (judgment of the Court of Cassation of 4 December 1952, Pasicrisie 1953, I, p. 215). A publication is regarded as being an abuse where it breaches a criminal provision (without it being necessary, however, for all the ingredients of the offence to have been made out); disseminates ill-considered accusations without sufficient evidence; employs gratuitously offensive terms or exaggerated expressions; or fails to respect private life or the individual ’ s privacy. 27. Articles 443 to 449 and 561, 7, of the Criminal Code make defamation and insults punishable. By Article 450, these offences, where committed against individuals, can be prosecuted only on a complaint by the injured party or, if that person has died, his spouse, descendants or statutory heirs up to and including the third degree. Articles 275 and 276 of the same Code make it a punishable offence to insult members of the ordinary courts. PROCEEDINGS BEFORE THE COMMISSION 28. Mr De Haes and Mr Gijsels applied to the Commission on 12 March 1992. They alleged that the judgments against them had infringed their right to freedom of expression as guaranteed in Article 10 of the Convention (art. 10) and that it had been based on an erroneous interpretation of Article 8 (art. 8). They also maintained that they had not had a fair trial by an independent and impartial tribunal within the meaning of Article 6 (art. 6). 29. The Commission declared the application (no. 19983/92) admissible on 24 February 1995. In its report of 29 November 1995 (Article 31) (art. 31), it expressed the opinion that there had been a violation of Article 10 (art. 10) (six votes to three) and Article 6 (art. 6) (unanimously) of the Convention but not of Article 8 (art. 8). The full text of the Commission ’ s opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 30. In their memorial the Government asked the Court to "hold that there ha[d] been no violation of Articles 6 and 10 of the Convention (art. 6, art. 10)". 31. In their memorial the applicants asked the Court to "hold that there ha[d] been a violation of Article 10 and Article 6 of the Convention (art. 10, art. 6)". AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION (art. 10) 32. The applicants alleged that the judgment of the Brussels tribunal de première instance and Court of Appeal against them had entailed a breach of Article 10 of the Convention (art. 10), which provides: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article (art. 10) shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." 33. The judgment against the applicants indisputably amounted to an "interference" with their exercise of their freedom of expression. It was common ground that the interference had been "prescribed by law" and had pursued at least one of the legitimate aims referred to in Article 10 para. 2 (art. 10-2) - the protection of the reputation or rights of others, in this instance the rights of the judges and Advocate-General who brought proceedings. The Court agrees. It must therefore ascertain whether the interference was "necessary in a democratic society" for achieving that aim. 34. Mr De Haes and Mr Gijsels pointed out that their articles had been written against the background of a public debate, reported by other newspapers, on incest in Flanders and on the way in which the judiciary was dealing with the problem. Before writing them, they had undertaken sufficient research and sought the opinion of several experts, and that had enabled them to base the articles on objective evidence. The only reason why they had not produced that evidence in court was that they had not wished to disclose their sources of information. The refusal of the Brussels courts of first instance and appeal to admit in evidence the documents they had mentioned had accordingly in itself entailed a breach of Article 10 (art. 10). Their criticisms of the judges and Advocate-General concerned could not, they continued, justify a penalty merely on the ground that the criticisms were at odds with decisions of the Antwerp Court of Appeal. The determination of the "judicial truth" in a court decision did not mean that any other opinion had to be considered wrong when the exercise of the freedom of the press was being reviewed. That, however, was exactly what had happened in the instant case, although the impugned articles had been based on sufficient objective information. In short, the interference complained of had not been necessary in a democratic society. 35. The Commission accepted this argument in substance. 36. The Government maintained that, far from stimulating discussion of the functioning of the system of justice in Belgium, the impugned press articles had contained only personal insults directed at the Antwerp judges and Advocate-General and had therefore not deserved the enhanced protection to which political views were entitled. No immunity could be claimed for opinions expressed by journalists merely on the ground that the accuracy of those opinions could not be verified. In the instant case the authors of the articles had incurred a penalty for having exceeded the limits of acceptable criticism. It would have been quite possible to challenge the way the courts had dealt with Mr X ’ s cases without at the same time making a personal attack on the judges and Advocate-General concerned and accusing them of bias and of showing "a lack of independence". In that connection, it also had to be borne in mind that the duty of discretion laid upon magistrats prevented them from reacting and defending themselves as, for example, politicians did. 37. The Court reiterates that the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest, including those relating to the functioning of the judiciary. The courts - the guarantors of justice, whose role is fundamental in a State based on the rule of law - must enjoy public confidence. They must accordingly be protected from destructive attacks that are unfounded, especially in view of the fact that judges are subject to a duty of discretion that precludes them from replying to criticism. In this matter as in others, it is primarily for the national authorities to determine the need for an interference with the exercise of freedom of expression. What they may do in this connection is, however, subject to European supervision embracing both the legislation and the decisions applying it, even where they have been given by an independent court (see, mutatis mutandis, the Prager and Oberschlick v. Austria judgment of 26 April 1995, Series A no. 313, pp. 17-18, paras. 34-35). 38. The Court notes at the outset that the judgment against the applicants was based on all the articles published by them between 26 June and 27 November 1986 on the subject of the X case. This must be taken into account for the purpose of assessing the scale and necessity of the interference complained of. 39. The articles contain a mass of detailed information about the circumstances in which the decisions on the custody of Mr X ’ s children were taken. That information was based on thorough research into the allegations against Mr X and on the opinions of several experts who were said to have advised the applicants to disclose them in the interests of the children. Even the Antwerp Court of Appeal considered that Mr X ’ s wife and parents-in-law, who had been prosecuted for criminal libel, "had no good reason to doubt the truth of the allegations" in question (see paragraph 8 above). That being so, the applicants cannot be accused of having failed in their professional obligations by publishing what they had learned about the case. It is incumbent on the press to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them (see, among other authorities, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 23, para. 31, and the Goodwin v. the United Kingdom judgment of 27 March 1996, Reports of Judgments and Decisions 1996-II, p. 500, para. 39). This was particularly true in the instant case in view of the seriousness of the allegations, which concerned both the fate of young children and the functioning of the system of justice in Antwerp. The applicants, moreover, made themselves quite clear in this regard when they wrote in their article of 18 September 1986: "It is not for the press to usurp the role of the judiciary, but in this outrageous case it is impossible and unthinkable that we should remain silent" (see paragraph 21 above). 40. It should be noticed, moreover, that the judges and Advocate ‑ General who brought proceedings did not, either in their writ or in their submissions to the Brussels courts of first instance and appeal, cast doubt on the information published about the fate of the X children, other than on the statement that the case in question had been withdrawn from the Antwerp courts (see paragraphs 22 and 23 above). However, the weight of the latter item in comparison with the impugned articles as a whole and the fact that the applicants corrected it themselves, mean that, on its own, that incident cannot put in doubt the reliability of the journalists ’ work. 41. In actual fact the judges and Advocate-General complained mainly of the personal attacks to which they considered they had been subjected in the journalists ’ comments on the events in the custody proceedings in respect of the X children. The applicants, in accusing them of marked bias and cowardice, had, they maintained, made remarks about them that were defamatory and constituted an attack on their honour. The applicants had furthermore accused two of them of pronounced extreme-right-wing sympathies and had thus grossly infringed their right to respect for their private life. The Brussels courts accepted that contention in substance (see paragraphs 11 and 14 above). The Court of Appeal essentially found the applicants guilty of having made unproved statements about the private life of the judges and Advocate-General who had brought proceedings and of having drawn defamatory conclusions by alleging that they had not been impartial in their handling of the case of the X children. Its judgment says: "In the instant case the appellants dared to go one step further by maintaining, without a shred of evidence, that they were entitled to infer the alleged bias from the very personalities of the judges and the Advocate-General and thus interfere with private life, which is without any doubt unlawful. Furthermore, the purpose of the present proceedings is not to decide what ultimately was the objective truth in the case that the original plaintiffs finally determined at the time but merely whether the comments in issue are to be considered defamatory, which is not in the slightest doubt." (see paragraph 14 above) 42. The Court reiterates that a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof (see the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 28, para. 46). 43. As regards, firstly, the statements concerning the political sympathies of the judges and Advocate-General who brought proceedings, it must be noted that the Brussels Court of Appeal held: "Even if the appellants believed that certain ideological views could be ascribed to the respondents (views which they have failed to prove that the respondents held), they cannot in any event be permitted purely and simply to infer from those views - even if they had been proved - that the judges and the Advocate-General were biased and to criticise that bias in public." (see paragraph 14 above) It is apparent from this that even if the allegations in question had been accurate, the applicants would not have escaped being found liable since that finding related not so much to the allegations reported as to the comments which these inspired the journalists to make. 44. Added to the information which the applicants had been able to gather about Mr X ’ s behaviour towards his children, information which was in itself capable of justifying the criticism of the decisions taken by or with the aid of the judges and Advocate-General concerned, the facts which they believed they were in a position to allege concerning those persons ’ political sympathies could be regarded as potentially lending credibility to the idea that those sympathies were not irrelevant to the decisions in question. 45. One of the allusions to the alleged political sympathies was inadmissible - the one concerning the past history of the father of one of the judges criticised (see paragraph 19 above). It is unacceptable that someone should be exposed to opprobrium because of matters concerning a member of his family. A penalty was justifiable on account of that allusion by itself. It was, however, only one of the elements in this case. The applicants were convicted for the totality of the accusations of bias they made against the three judges and the Advocate-General in question. 46. In this connection, the Court reiterates that freedom of expression is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb the State or any section of the community. In addition, journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see, mutatis mutandis, the Prager and Oberschlick judgment cited above, p. 19, para. 38). 47. Looked at against the background of the case, the accusations in question amount to an opinion, whose truth, by definition, is not susceptible of proof. Such an opinion may, however, be excessive, in particular in the absence of any factual basis, but it was not so in this instance; in that respect the present case differs from the Prager and Oberschlick case (see the judgment cited above, p. 18, para. 37). 48. Although Mr De Haes and Mr Gijsels ’ comments were without doubt severely critical, they nevertheless appear proportionate to the stir and indignation caused by the matters alleged in their articles. As to the journalists ’ polemical and even aggressive tone, which the Court should not be taken to approve, it must be remembered that Article 10 (art. 10) protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see, as the most recent authority, the Jersild judgment cited above, p. 23, para. 31). 49. In conclusion, the Court considers that, regard being had to the seriousness of the circumstances of the case and of the issues at stake, the necessity of the interference with the exercise of the applicants ’ freedom of expression has not been shown, except as regards the allusion to the past history of the father of one of the judges in question (see paragraph 45 above). There has therefore been a breach of Article 10 (art. 10). II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION (art. 6-1) 50. The applicants also complained of a breach of Article 6 para. 1 of the Convention (art. 6-1), which provides: "In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an ... impartial tribunal ..." They firstly criticised the Brussels tribunal de première instance and Court of Appeal for having refused to admit in evidence the documents referred to in the impugned articles or hear at least some of their witnesses (see paragraphs 10 and 12 above). This, they said, had resulted in a basic inequality of arms between, on the one hand, the judges and the Advocate ‑ General, who were familiar with the file, and, on the other, the journalists, who with only limited sources had had to reconstruct the truth. Further, in arguing against Mr De Haes and Mr Gijsels on the basis of their article of 14 October 1988 (see paragraph 24 above), the Brussels Court of Appeal had ruled on matters not before it as the judges criticised in that article were not parties to the case before the Court of Appeal and their decision had not been mentioned in the original writ. The Court of Appeal had thus taken as a basis a fact that had not been the subject of adversarial argument and had thereby departed from due process. Lastly, the derogatory terms used in the Brussels Court of Appeal ’ s judgment showed that there had been a lack of subjective impartiality. 51. The Commission shared, in substance, the applicants ’ opinion as to the effects of the alleged breaches on equality of arms and due process. It did not consider it necessary to express a view on the Brussels Court of Appeal ’ s impartiality. 52. The Government submitted that the evidence which the journalists proposed to submit had been calculated to call in question the decisions taken in the lawsuit between Mr X and his wife, which was res judicata. The Brussels courts had therefore been entitled to reject it, seeing that the "judicial truth" was sufficiently clear from the judgments delivered in Mr X ’ s cases. In short, production of the evidence in question had been shown not to be decisive in the instant case, and the Court of Cassation had confirmed that. As to the Court of Appeal ’ s reference to the press article of 14 October 1988, it was a superfluous reason, as the judgment against the applicants rested primarily on other grounds. The reference to that article in the submissions of the judges and Advocate-General who had brought proceedings was not intended to amend their claim but simply to highlight Mr De Haes and Mr Gijsels ’ relentless hostility. 53. The Court reiterates that the principle of equality of arms - a component of the broader concept of a fair trial - requires that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, the Ankerl v. Switzerland judgment of 23 October 1996, Reports 1996-V, pp. 1565-66, para. 38). 54. It notes that in their submissions to the Brussels courts of first instance and appeal the judges and Advocate-General concerned maintained, in substance and inter alia, that the criticisms made of them in Humo were not supported by the facts of the case and certainly not by the four judgments that had been delivered by them or with their aid in that case, which were otherwise uncontradicted. They thus referred, in order to deny that there was any basis for the journalists ’ argument, to the content of the case they had themselves dealt with and of the relevant judgments. Coming as it did from the judges and Advocate-General who had handled the case, that statement had such credibility that it could hardly be seriously challenged in the courts if the defendants could not adduce at least some relevant documentary or witness evidence to that end. 55. In this respect, the Court does not share the Brussels Court of Appeal ’ s opinion that the request for production of documents demonstrated the lack of care with which Mr De Haes and Mr Gijsels had written their articles. It considers that the journalists ’ concern not to risk compromising their sources of information by lodging the documents in question themselves was legitimate (see, mutatis mutandis, the Goodwin judgment cited above, p. 502, para. 45). Furthermore, their articles contained such a wealth of detail about the fate of the X children and the findings of the medical examinations they had undergone that it could not reasonably be supposed, without further inquiry, that the authors had not had at least some relevant information available to them. 56. It should also be noted that the journalists ’ argument could hardly be regarded as wholly unfounded, since even before the judges and the Advocate-General brought proceedings against the applicants, the Antwerp tribunal de première instance and Court of Appeal had held that the defendants in the libel action Mr X had brought against his wife and parents-in-law had not had any good reason to doubt the truth of their allegations (see paragraph 8 above). 57. At all events, the proceedings brought against the applicants by the judges and the Advocate-General did not relate to the merits of the judgment in the X case but solely to the question whether in the circumstances the applicants had been entitled to express themselves as they had. It was not necessary in order to answer that question to produce the whole file of the proceedings concerning Mr X but only documents which were likely to prove or disprove the truth of the applicants ’ allegations. 58. It was in those terms that Mr De Haes and Mr Gijsels made their application. They asked the Brussels tribunal de première instance and Court of Appeal at least to study the opinion of the three professors whose examinations had prompted the applicants to write their articles (see paragraph 10 above). The outright rejection of their application put the journalists at a substantial disadvantage vis-à-vis the plaintiffs. There was therefore a breach of the principle of equality of arms. 59. That finding alone constitutes a breach of Article 6 para. 1 (art. 6-1). The Court consequently considers it unnecessary to examine the other complaints raised by the applicants under that provision (art. 6-1). III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50) 60. Article 50 of the Convention (art. 50) provides: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Pecuniary damage 61. The applicants sought 113,101 Belgian francs (BEF) in respect of pecuniary damage. That sum corresponded to the cost of publishing the Brussels Court of Appeal ’ s judgment of 5 February 1990 in Humo, plus "one franc on account" for the publication of the same judgment in six daily newspapers, which has not yet taken place. 62. No observations were made by either the Delegate of the Commission or the Government. 63. As the publishing of the judgment was a direct consequence of the wrongful finding against Mr De Haes and Mr Gijsels, the Court considers the claim justified. B. Non-pecuniary damage 64. The journalists also sought compensation in the amount of BEF 500,000 each for non-pecuniary damage caused by the adverse publicity and the psychological ordeals which followed their conviction. 65. The Government considered that the Court ’ s judgment would be sufficient redress for that damage. The Delegate of the Commission did not express a view. 66. In the Court ’ s opinion, the Belgian courts ’ decisions against the applicants must have caused them certain unpleasantnesses. The finding of a breach of the Convention, however, affords sufficient just satisfaction in this regard. C. Costs and expenses 67. Mr De Haes and Mr Gijsels sought BEF 851,697 in respect of the costs and expenses relating to their legal representation, namely: BEF 332,031 for the proceedings in the domestic courts and BEF 519,666 for those before the Convention institutions, including BEF 179,666 for translation expenses. 68. No observations were made by either the Delegate of the Commission or the Government. 69. That being so, the Court allows the claim. D. Default interest 70. According to the information available to the Court, the statutory rate of interest applicable in Belgium at the date of adoption of the present judgment is 7% per annum. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that, regard being had to the seriousness of the circumstances of the case and of the issues at stake, the necessity of the interference with the exercise of the applicants’ freedom of expression has not been shown, except as regards the allusion to the past history of the father of one of the judges in question. The Court reiterated in particular that the press played an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to the functioning of the judiciary. It further noted that the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence. They must accordingly be protected from destructive attacks that are unfounded, especially in view of the fact that judges are subject to a duty of discretion that precludes them from replying to criticism. In this matter as in others, it is primarily for the national authorities to determine the need for an interference with the exercise of freedom of expression. What they may do in this connection is, however, the Court pointed out, subject to European supervision embracing both the legislation and the decisions applying it, even where they have been given by an independent court. In the present case, although the applicants’ comments had without doubt been severely critical, they had nevertheless appeared proportionate to the stir and indignation caused by the matters alleged in their articles. The Court also held that there had been a violation of Article 6 § 1 of the Convention, finding that there had been a breach of the principle of equality of arms in respect of the applicants. |
937 | Concurrent judicial functions in the same case | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Origins and development of the administrative courts 28. The history of France’s administrative courts is essentially that of the Conseil d’Etat. In 1790 the Constituent Assembly implemented the theory of the separation of powers and organised matters so that the executive would not be subject to the judiciary. It preserved the ancien régime principle that administrative authorities should be tried by a special court, in accordance with the idea that judging the administrative authorities was “also an administrative act”. Such a special court was set up by the Consulate in 1799. This was the Conseil d’Etat, which was instituted by Article 52 of the Constitution of 22 Frimaire Year VIII (13 December 1799). It was given responsibilities in two areas: administrative (contributing to the drafting of major enactments ) and judicial (settling disputes connected with the administrative authorities). 29. In 1849 an Act vested it with the administration of “delegated” justice ( la justice déléguée ), and thereafter it accordingly gave its rulings “in the name of the French people”. During the Third Republic the Conseil d’Etat acquired an organisational pattern that it still largely has today. Its function was laid down in the Act of 24 May 1872, which amended the 1849 Act and established delegated justice permanently. 30. The main feature of the post-war period was the organisation of the administrative jurisdiction. In 1953 the administrative courts (of first instance) succeeded the prefectural councils, which had existed since 1799. The 1958 Constitution, which contains only three Articles – 64, 65 and 66 – relating to the judiciary, in particular, to provide that judges (but not members of State Counsel’s offices) are irremovable, does not mention the Conseil d’Etat or the other administrative courts under this head. The Act of 31 December 1987, which came into force in 1989, added to the courts vested with administrative jurisdiction the administrative courts of appeal, to which the bulk of the appellate jurisdiction was transferred. From these new courts and various specialised courts, such as the Court of Audit, an appeal on points of law lies to the Conseil d’Etat as the supreme administrative court. B. Status of judges of the administrative courts 31. The judges of the administrative courts have a special status different from that of the judges of the ordinary courts and the members of State Counsel’s Office at those courts. They are governed by the general rules on the civil service; however, they are in practice both independent and irremovable (see paragraph 35 below). In 1980 a decision of the Constitutional Council (22 July 1980, Official Gazette of 24 July, p. 1868) established the existence and independence of the administrative jurisdiction as being among the fundamental principles recognised in the laws of the Republic having constitutional rank. 32. The Conseil d’Etat has about 300 members, two-thirds of whom work within the Conseil and one-third outside it. Its nominal President is the Prime Minister and in practice the Vice-President of the Conseil d’Etat presides. By Article 13, third paragraph, of the Constitution, concerning the powers of appointment of the President of the Republic, all the senior members of the Conseil d’Etat ( conseillers d’Etat ) are appointed by decree of the President of the Republic adopted in Cabinet, while the junior legal assistants ( auditeurs ) and the middle-ranking maîtres des requêtes are appointed by an ordinary presidential decree, under section 2 of the Ordinance of 28 November 1958 on civil and military appointments. 1. Recruitment of members of the Conseil d’Etat 33. The members of the Conseil d’Etat are recruited in one of two ways: through competitive examination or directly from other parts of the civil service. Legal assistants, recruited through competitive examination, are promoted to the rank of maître des requêtes after about three years’ service and become conseillers d’Etat about twelve years later. External appointments are subject to approval by the Vice-President of the Conseil d’Etat. 2. Guarantees of independence 34. The status of the members of the Conseil d’Etat is not so much laid down in writing as guaranteed in practice. As regards written rules, mention must be made of the decree of 30 July 1963 laying down the rights and duties of members of the Conseil d’Etat. These rights and duties are very similar to those applying to the civil service (and, in particular, no provision is made for irremovability ), with a number of exceptions: no provision is made for assessment, no promotions table is drawn up and an advisory committee replaces both the Joint Administrative Committee and the Joint Technical Committee. 35. It is thus, rather, practice which provides the guarantees enjoyed by the members of the Conseil d’Etat. Three traditional practices are both very long-standing and decisive: firstly, the Conseil d’Etat and its members are managed internally by the Executive Committee ( bureau ) of the Conseil d’Etat, consisting of the Vice-President, the six division presidents and the Secretary-General of the Conseil d’Etat, without any outside interference. In particular, there is no distinction in the Conseil d’Etat between judges and members of State Counsel’s Office as there is in the ordinary courts, where the members of State Counsel’s Office are subordinated to the Minister of Justice. Secondly, even though there is no written provision guaranteeing the irremovability of members of the Conseil, that guarantee exists in practice. Lastly, while promotion is theoretically by selection, it is in practice – by a custom which goes back to the middle of the nineteenth century – strictly by seniority, and this guarantees the members of the Conseil d’Etat great independence, vis-à-vis both the political authorities and the authorities of the Conseil d’Etat themselves. 36. Most duties within the Conseil d’Etat can be performed by members of any grade. Thus the duties of Government Commissioner, although generally given to maîtres des requêtes, can also be carried out by auditeurs or conseillers d’Etat. 37. The Act of 31 December 1987 instituted a National Council of Administrative Courts and Administrative Courts of Appeal, whose membership ensures that it is independent and representative. The Council has a general advisory role in relation to matters concerning the staff of all the administrative courts (individual measures affecting judges’ careers, promotion and discipline). C. Judicial work 38. Procedure in the administrative courts has developed essentially under the influence of the courts themselves. It attempts to achieve a compromise between the public interest – represented in the proceedings by the administrative authorities – and the interests of individuals, who must be effectively protected from misuse of public authority. The procedure is inquisitorial, written and inexpensive, and its distinctive feature is that one of the parties is a public body. 39. The Conseil d’Etat consists of five administrative divisions (Interior, Finance, Public Works, Social, and Report and Research) and a Judicial Division, itself subdivided into ten sections ( sous -sections ). D. The course of proceedings in the Conseil d’Etat 1. The role of the reporting judge 40. Where a case has been assigned to a section, the president of the section appoints one of its members as reporting judge to examine the case. After careful study of the file the reporting judge draws up a draft decision. The draft is accompanied by a memorandum whose purpose is to set out the reasoning leading from the application to the draft. The memorandum includes a consideration of admissibility issues (including jurisdiction and verification that there is no defect rendering the application inadmissible as a matter of public policy) and must answer each ground raised in the application, with reference either to the evidence or to legal provisions or to case-law. The reporting judge appends to the memorandum a copy of the provisions and case-law relied on in the draft decision. The file subsequently goes to the reviser, an office assumed in each section by the president or one of the other two assesseurs constituting the bench. The reviser re-examines the evidence and forms a view as to how the case should be decided. He may himself prepare another draft decision in the event of disagreement with the reporting judge. Once the draft decision has been revised, the case is listed for consideration at a preparatory sitting of the section, at which it will be discussed in the presence of the Government Commissioner, who does not, however, take part in the vote on the draft. Only when the draft decision has been adopted by the section will the file be forwarded to the Government Commissioner to enable him either to prepare his submissions or to ask for a fresh preparatory sitting to be convened or for the case to be transferred to a differently constituted court. 2. The role of the Government Commissioner 41. The institution of Government Commissioner dates from an ordinance of 12 March 1831. Originally, as its name indicates, it was designed to represent the government’s point of view, but that function very rapidly disappeared (at the latest in 1852). The title has remained but is now a misnomer. Since then the institution has become, to the outside observer, one of the most distinctive features of French administrative justice, in particular because Government Commissioners rapidly established themselves as judicial officers totally independent of the parties. The Government Commissioner plays a traditionally very important role in the creation of administrative case-law and most of the major judicial innovations have come about as a result of celebrated submissions by the Government Commissioner. Furthermore, given that the judgments of the Conseil d’Etat are always drafted very elliptically, it is often only by reading the submissions of the Government Commissioner, where published, that one can discern the ratio decidendi of the judgments. (a) Appointment 42. By the terms of Decree no. 63-766 of 30 July 1963 on the organisation and functioning of the Conseil d’Etat, Government Commissioners are taken from among the maîtres des requêtes and auditeurs at the Conseil d’Etat or, exceptionally, from among the conseillers. By Article R 122-5 of the Administrative Courts Code, they are appointed by a decree of the Prime Minister, adopted on a proposal by the Minister of Justice, after being put forward by the Vice-President of the Conseil d’Etat in consultation with the division presidents. In practice, the Conseil d’Etat ’s proposals are always endorsed. Appointment as Government Commissioner – which is not a rank – is for an unlimited duration but a Government Commissioner cannot remain in post for more than ten years and in practice does not generally do so for more than two or three years. There are two Government Commissioners for each of the ten sections that make up the Judicial Division but there is no hierarchy of Government Commissioners, who do not constitute a separate “corps”. (b) Role of the Government Commissioner during the preparation of the case for trial 43. The Government Commissioner is a member of the Conseil d’Etat who is attached to the section from which the bench designated to hear a case is constituted and he attends – without voting and generally without speaking – the sitting at which the cases are prepared for trial, when the cases are presented by the reporting judges, and he receives a copy of the draft judgment adopted by the section and revised by the reviser. When his view of a case differs from that of the section, he can come and discuss it with the section at another preparatory sitting. If the disagreement remains and he considers that the case is of sufficient importance, he has the right (rarely exercised in practice) to request that the case should be referred to the Judicial Division or to the Judicial Assembly (Article 39 of the decree of 30 July 1963 on the organisation and functioning of the Conseil d’Etat ). Only after that will he prepare his submissions for the actual trial, which is open to the public. These submissions, which are generally exclusively oral ones, are not communicated either to the parties or to the reporting judge or to the members of the trial bench. (c) Role of the Government Commissioner at the hearing 44. It has become an established practice to communicate to lawyers who so request, before the hearing, the general tenor of the submissions which the Government Commissioner will make at the hearing. In view of the number of cases to be tried (about 500 a year for each Government Commissioner), the Government Commissioner’s submissions, which remain his exclusive property, are often solely oral. He has complete freedom as to whether or not to place those he has decided to put in writing in the Conseil d’Etat ’s archives or to publish them in important cases as an annex to Conseil d’Etat judgments reported in the official reports or in legal periodicals. 45. At the hearing the Government Commissioner is under an obligation to make his submissions, which must be reasoned, since he is not allowed to say that he wishes to leave matters to the court’s discretion. 46. The Government Commissioner’s role at the hearing was described as follows by a former member of the Conseil d’Etat, T. Sauvel, in 1949: “Once the case has reached the public hearing, and the reporting judge has read his report, which is merely a summary of the evidence and makes no mention of the section’s opinion, and the lawyers have made oral submissions if they considered it appropriate, the Commissioner stands up and is the one who speaks last, even after counsel for the defence. He sets out the whole case, making a critical analysis of all the grounds and of all the case-law that could be relied on; often he will indicate how the case-law has developed, highlighting the stages it has already gone through and hinting at possible future developments. Lastly, he will submit that the application should be dismissed or allowed. He does so in his own name, without any obligation to share the section’s opinion or to take instructions either from Principal State Counsel (for there is none) or from any superior, presiding judge or minister. He is answerable only to his own conscience. He is a vital cog in the machinery of administrative procedure, which perhaps owes its real distinctiveness to him. The submissions in many cases go far beyond the bounds of the individual case and amount to legal treatises, to which litigants and commentators will long refer.” 47. In the terms used by the Conseil d’Etat itself (10 July 1957, Gervaise, Recueil Lebon, p. 466, reiterated on 29 July 1998 in Esclatine ) the Government Commissioner’s function is “to set out for the Conseil the issues which each application raises for decision and to make known, by making his submissions completely independently, his own assessment, which must be impartial, of the facts of the case and the applicable rules of law, together with his opinion as to whether the manner in which, according to his conscience, the case submitted to the Court to which he belongs should be disposed of.” 48. At the hearing, therefore, the parties to the case cannot speak after the Government Commissioner, since he speaks after counsel for the opposing parties have addressed the court. Even if they are not represented by a lawyer, they do, however, have the possibility, hallowed by usage, of sending the trial bench a “memorandum for the deliberations” to supplement the observations they have made orally or to reply to the Government Commissioner’s submissions. This memorandum for the deliberations is read out by the reporting judge before he reads out the draft judgment and before the discussion begins. 49. Furthermore, it is settled case-law of the Conseil d’Etat that if the Government Commissioner were to raise a ground – even one involving an issue of public policy – that had not been relied on by the parties during the proceedings, the presiding judge would stay the proceedings, communicate the ground to the parties so that they could present argument on it, and relist the case for a fresh hearing some weeks later, since grounds raised of the court’s own motion have to be notified to the parties. (d) The role of the Government Commissioner during the deliberations 50. After the public hearing it is customary for the Government Commissioner to attend the deliberations but he has no vote. As a general rule, he intervenes orally only to answer any specific questions that are put to him. He is, after all, the member of the Court who has seen the case file most recently and is therefore supposed to have the most detailed knowledge of it. 51. Cases in the Conseil d’Etat may be tried either by a single section (and in that event all the members of the trial bench already know the case) or by combined sections (in that event, four members, representing the section which prepared the case for trial, out of the nine judges who have to deliberate on it know the case) or by the Judicial Division or the Judicial Assembly (so-called solemn constitutions of the court for hearing the most important cases), in which only the President and the reporting judge, out of the seventeen or twelve judges who will have to deliberate on it, know the case. 52. Lastly, it should be pointed out that there are Government Commissioners not only at the Conseil d’Etat but also at the other administrative courts (of first instance and appeal) and at the Jurisdiction Disputes Court. Furthermore, the function of Advocate General at the Court of Justice of the European Communities was closely modelled on the institution of Government Commissioner, with the difference that under Article 27 § 2 of the Rules of Procedure of the Court of Justice, only the judges who sat at the hearing may take part in the deliberations – to the exclusion, therefore, of the Advocate General. E. The case-law of the Court of Justice of the European Communities 53. In connection with the hearing of a reference for a preliminary ruling made to the Court of Justice at the European Communities by a Dutch court (the Arrondissementsrechtbank te ‘s- Gravenhage ), Emesa Sugar (Free Zone) N.V. (a company), relying on Article 6 § 1 of the Convention, applied on 11 June 1999 to submit written observations after the Advocate General had delivered his opinion at the hearing on 1 June. 54. In an order of 4 February 2000 the Court of Justice refused that application on the following grounds: “... 11. In accordance with Articles 221 and 222 of the EC Treaty, the Court of Justice consists of Judges and is assisted by Advocates General. Article 223 lays down identical conditions and the same procedure for appointing both Judges and Advocates General. In addition, it is clear from Title I of the EC Statute of the Court of Justice, which, in law, is equal in rank to the Treaty itself, that the Advocates General have the same status as the Judges, particularly so far as concerns immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence. 12. Moreover, the Advocates General, none of whom is subordinate to any other, are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain Member States. They are not entrusted with the defence of any particular interest in the exercise of their duties. 13. The role of the Advocate General must be viewed in that context. In accordance with Article 222 of the EC Treaty, his duty is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it, which is to ensure that in the interpretation and application of the Treaty, the law is observed. 14. Under Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure of the Court, the Opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties, but rather opens the stage of deliberation by the Court. It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which ‘derives its authority from that of the procureur général ’s department ...’ ( judgment in Vermeulen v. Belgium, cited above, paragraph 31). Rather, it constitutes the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself. 15. The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the Opinion is published together with the Court’s judgment. 16. Having regard to both the organic and the functional link between the Advocate General and the Court ..., the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the Opinion of the Court’s Advocates General. 17. Moreover, given the special constraints inherent in Community judicial procedure, connected in particular with its language regime, to confer on the parties the right to submit observations in response to the Opinion of the Advocate General, with a corresponding right for the other parties (and, in preliminary ruling proceedings, which constitute the majority of cases brought before the Court, all the Member States, the Commission and the other institutions concerned) to reply to those observations, would cause serious difficulties and considerably extend the length of the procedure. 18. Admittedly, constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure. However, no such situation arises in that, with a view to the very purpose of adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties ... 19. In the instant case, however, Emesa’s application does not relate to the reopening of the oral procedure, nor does it rely on any specific factor indicating that it would be either useful or necessary to do so.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION WITH RESPECT TO THE FAIRNESS OF THE PROCEEDINGS 55. Mrs Kress alleged a violation of Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Submissions of the parties 1. The applicant 56. Referring to Borgers v. Belgium ( judgment of 30 October 1991, Series A no. 214-B), Lobo Machado v. Portugal ( judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I) and Reinhardt and Slimane-Kaïd v. France ( judgment of 31 March 1998, Reports 1998-II), the applicant firstly complained that the Government Commissioner’s submissions had not been communicated to her before the hearing and that she had not been able to reply to him at the hearing or speak last; secondly, she complained that the fact that the Government Commissioner had been present at the trial bench’s deliberations – which were held in private – when he had earlier submitted that her appeal should be dismissed, offended against the principle of equality of arms and cast doubt on the court’s impartiality. She pointed out that at each stage of the proceedings – firstly in the Administrative Court, then in the Administrative Court of Appeal and, lastly, in her appeal on points of law to the Conseil d’Etat – a Government Commissioner had intervened at the end of each hearing to express his view of the case without that view having been known to the parties beforehand and without it being possible to reply. The fact that the Government Commissioner was not a party to the administrative proceedings did not exclude the application to him of the adversarial principle, according to which, in the applicant’s submission, no document could be lawfully submitted to the court without the parties having previously been able to study it. Under the case-law of the European Court, the same was true of observations by a third party intervening in the proceedings, even if that person was an independent judicial officer. The applicant submitted that the Government Commissioner could not be equated with a member of the trial court since, although he did not vote at the deliberations, the fact that he intervened at the hearing, after the parties and without their having any opportunity to reply, made him, objectively speaking, an ally or an opponent of one of the parties to the proceedings, seeing that at the deliberations he might defend his point of view again in the absence of the parties. The applicant considered that the Government Commissioner’s intervention in the proceedings was comparable to that of the Advocate-General in the French Court of Cassation – and in Reinhardt and Slimane-Kaïd, cited above, the Court had held that the imbalance created between the parties and the Advocate-General by the disclosure before the hearing to the Advocate-General, but not to the parties, of the report and draft judgment of the reporting judge was not reconcilable with the requirements of a fair trial. Lastly, the practice of the memorandum for the deliberations did not enable a party to put forward all his arguments again and was therefore not sufficient to ensure that the adversarial principle was respected. It was also clear from the Conseil d’Etat ’s case-law that memoranda for the deliberations did not form part of the case file. 2. The Government (a) General observations 57. The Government maintained, firstly, that the judgments relied on by the applicant, which related to an institution – State Counsel’s Office at certain supreme courts in Europe – which had nothing to do with the Government Commissioner, were irrelevant authorities in the instant case. The only precedent in which the issue had been directly determined was the decision of the European Commission of Human Rights in Bazerque v. France (no. 13672/88, decision of 3 September 1991, unreported). In that decision the plenary Commission had rejected the complaint as manifestly ill-founded, taking the view that the Government Commissioner was a judicial officer who played a totally independent role vis-à-vis the parties and that his observations were in the nature solely of an internal working paper of the court, not communicated to the parties but made available to the judges who had to decide the case. The Government observed that when the Commission delivered the decision in Bazerque, cited above, the hearing in Borgers, during which the Commission had asked the Court to find that there had been a violation of Article 6 § 1 of the Convention, had already taken place. It was therefore clear that, in the Commission’s view, there had been no contradiction between the finding it had recommended – and which was adopted – in Borgers and the one it adopted at the same time, with the force of a unanimous decision, in Bazerque. 58. The judgments delivered by the Court since Borgers, cited above, in which it had been held that where it was impossible for the parties to reply to submissions by Crown Counsel’s Office at the Belgian Court of Cassation and by similar offices at a number of supreme courts, the adversarial principle and therefore also Article 6 of the Convention were contravened related to institutions that were radically different in nature from that of Government Commissioner. (b) Institutional difference between advocates-general at supreme courts and the Government Commissioner 59. The Government maintained that there was a fundamental difference between the Government Commissioner and a State counsel’s office of the type that existed at the Court of Cassation in Belgium or in France in that the Commissioner was quite simply a member of the court, being himself a judge. It was well known that this Commissioner, despite his misleading title, in no way represented the Government or the administrative authorities, who were the defendant in proceedings in the administrative courts. He set out his personal opinion of cases wholly independently and wholly impartially, in the light of the parties’ submissions and without being prejudiced in favour of either party. The Government admitted that that was not sufficient to distinguish him from Principal State Counsel’s Office – Principal State Counsel and the advocates-general – at the Court of Cassation, which was likewise independent and impartial, a factor that the European Court had not regarded as a sufficient reason for exempting his submissions from adversarial argument by the parties. But the Government Commissioner’s status was unambiguous in this respect: it was not merely identical with that of the judges but it was that of the judges, since the Commissioner was one of them, vested with a particular function in the course of the proceedings. That explained why the Commissioner was chosen from among the members of the court by its President, a procedure that was inconceivable in the case of a State counsel’s office, however independent, whose role could not be conferred on it by the presiding judge of a court since there was an inbuilt structural separation between State Counsel’s Office and the court itself. The Commissioner was part of the court before being appointed to his duties for a limited period of time; he would continue to be part of it when he had ceased to perform those duties and, most important of all, he continued to be part of it throughout the period during which he performed them, just like a reporting judge, neither more nor less. (c) Functional difference between advocates-general and the Government Commissioner 60. Unlike the function of a State counsel’s office, which represented society or the public interest or whose function was to ensure the consistency of case-law, that of the Government Commissioner was, after the parties had finished making their submissions in accordance with the adversarial principle, and once the hearing had ended, to put his personal opinion to his colleagues, inviting them to decide the case in a particular way. In other words, his function was indistinguishable from that of a reporting judge. At the Conseil d’Etat each Government Commissioner belonged to one of the subdivisions (sections) and worked under the operational authority of the section president, while enjoying complete freedom of opinion, like all the judges. Once the written stage of the proceedings was over, when the case file was complete, the judges of the section met for an initial consideration of the case, after which they adopted a draft judgment, which was purely provisional. The Commissioner took part in that working session, during which the judge who had the title of reporting judge and was in fact the initial rapporteur for the case – the Commissioner being the second one – set out his view. The file was then sent to the Commissioner for him to study thoroughly. Subsequently, the case would be listed for a public hearing on a date chosen by the Commissioner himself. At that hearing the parties, if they were represented, would be able to address the court through their counsel. Once the oral submissions had been made, the Commissioner would address the court in order to express his personal opinion on the case; these submissions ( conclusions ) were made in public and were not necessarily drawn up in writing in advance. After that, generally immediately afterwards, the deliberations took place, in which the Commissioner participated as a member of the court, that is to say as naturally as one might expect. It went without saying that if in his submissions the Commissioner raised a fresh issue, on which the parties had not had an opportunity to present argument, and the trial bench considered the issue relevant to the determination of the case, the oral proceedings would be reopened and the case set down for a later hearing. It was also open to the parties to file a memorandum for the deliberations ( note en délibéré ). The Government therefore considered that the Commissioner was intimately bound up with the collegial work of the court, of which he was an essential component; his sphere of activity was entirely within the court and his place was among the judges. His submissions were an internal working paper of the court, not because they would not be made public – they were – but because they emanated from a member of the court, who was addressing his colleagues and who, in the wording of Esclatine (see paragraph 47 above) “[took] part in the judicial function devolving on the court of which he [was] a member”. The Government pointed out that distinguished authors had stated that the Commissioner was merely a “functional duplication of the reporting judge”, that his submissions were a “public report” and, furthermore, that they in actual fact represented the first stage of the deliberations, a distinctive feature of which was that it was public whereas the remaining stage of the deliberations was secret. It was apparent from Vermeulen v. Belgium ( judgment of 20 February 1996, Reports 1996-I, p. 234, § 33), that the right to observance of the adversarial principle covered only “evidence adduced or observations filed” by a person or body outside the court and not those which came from a judge and were intended for the other members of the bench. More generally, the principle in Vermeulen did not apply to the court’s internal work, the acts which contributed to the very process of reaching the collegial decision. Thus in Reinhardt and Slimane-Kaïd (cited above, pp. 665-66, § 105) the Court had accepted that the reporting judge’s report to the Court of Cassation and the draft judgment he had prepared were “legitimately privileged from disclosure as forming part of the deliberations” and that they could therefore not be communicated to the parties or be the subject of argument by them. The fact that such a report was presented in public – an advantage to parties – did not in any way alter the rule. (d) The Government Commissioner’s participation in the deliberations 61. The Government pointed out that it was customary for the Commissioner not to take part in the vote at the end of the deliberations in which he had sat. It should not, however, be inferred that he was not a judge and was to be regarded as an intervener, with the attendant consequences. From the point of view of his status and his position in the proceedings, there was no reason why the Commissioner should not take part in the vote at the deliberations, and his abstention was formal and symbolic rather than real. The origin of the practice lay in the very demanding and formalistic conception of the secrecy of the deliberations adopted in French law, a conception according to which no one outside the court was to know the view of any individual judge whose vote had contributed to the collegial decision. That being so, the Commissioner’s abstention when the vote was taken made it possible to keep up appearances and to leave intact, at least formally, the principle that the deliberations were secret: since the Commissioner made known his opinion publicly, he did not vote and in that way the principles were preserved. Nevertheless, the Commissioner was definitely a member of the trial bench and took part from start to finish in the collegial consideration of a case that ended in the decision. So much so, that the judgments in which the Conseil d’Etat ’s decision corresponded to the Commissioner’s submissions were often interpreted in the light of those submissions, which, in a manner of speaking, formed additional reasoning for the judgment. Where the decision went against the submissions, the latter amounted to something that in theory had no place in French law and was even excluded by it, but which was in practice accepted in the administrative courts, namely the opinion of a judge who dissented from the opinion of the majority of his colleagues. (e) Final remarks 62. The Government accepted that a judge such as the Government Commissioner might, in the eyes of lawyers accustomed to legal systems that had no equivalent, appear to have rather curious features, and perhaps even disconcerting ones. But they considered that the Court’s role was not to impose a single judicial pattern but to ensure compliance with the vital principles of a fair system of justice, while respecting the differences between legal systems so long as the differences were consistent with observance of those principles. The Government Commissioner belonged to the best traditions of French law, and his role in administrative proceedings had been the subject of innumerable studies, each more laudatory than the one before it. The institution had commanded the respect and admiration of generations of French and non-French lawyers. Firstly, if the manner in which the Commissioner contributed to proceedings infringed the rights of the parties and the fundamental principle of adversarial procedure, the members of the Conseil d’Etat Bar, who represented parties in the highest administrative court, would have been the best placed to notice the fact and the first to have complained of it, whereas in fact the Council of the Conseil d’Etat and Court of Cassation Bar had intervened in the instant case to support the system in question; not only did the Council not criticise it, but it even considered it to be excellent and wished to retain it. Secondly, some importance should also be attached to the recent ruling of the Court of Justice of the European Communities concerning the fact that it was impossible for parties to present argument on the submissions made to that court by the Advocate General. In an order of 4 February 2000 ( Emesa Sugar) the Court of Justice had interpreted Vermeulen, to which it referred, in much the same manner as the French Conseil d’Etat had done in Esclatine, cited earlier. The fact that the parties had no opportunity to reply to the Advocate General did not infringe the principles of a fair trial, the Court of Justice had said, since his submissions did not constitute “an opinion ... which stem[ med ] from an authority outside the Court” – like the procureur général ’s department referred to in Vermeulen – but the individual reasoned opinion, expressed in open court, of a member of the Court of Justice itself. That being so, if in the instant case the Court were to hold that there had been a violation of Article 6, it would – admittedly by implication, but necessarily – be condemning, as being contrary to the requirements of a fair trial, the system applied by the Court of Justice at Luxembourg from its inception. That Court, however, had been dispensing justice for nearly half a century, respected and even admired by all, and likewise projected a very good image of European justice, and no one had ever challenged the integrity of its procedure. The Government therefore submitted that there had been no violation of Article 6 § 1 of the Convention. B. The Court’s assessment 63. The applicant complained, under Article 6 § 1 of the Convention, that she had not had a fair trial in the administrative courts. That complaint had two limbs: firstly, the applicant or her lawyer had not been able to study the Government Commissioner’s submissions before the hearing or reply to them after it as the Government Commissioner always spoke last; and secondly, the Commissioner attended the deliberations, even if he did not vote, and that made worse the infringement of the right to a fair trial resulting from the failure to respect the principle of equality of arms and the right to adversarial procedure. 1. Recapitulation of the relevant case-law 64. The Court notes that on the points mentioned above the application raises, mutatis mutandis, issues similar to those examined by the Court in several cases concerning the role of the Advocate-General or similar officers at the Court of Cassation or Supreme Court in Belgium, Portugal, the Netherlands and France (see the following judgments : Borgers, Vermeulen, and Lobo Machado, cited above; Van Orshoven v. Belgium, 25 June 1997, Reports 1997-III; and J.J. v. the Netherlands and K.D.B. v. the Netherlands, 27 March 1998, Reports 1998-II; see also Reinhardt and Slimane-Kaïd, cited above). 65. In all these cases the Court held that there had been a violation of Article 6 § 1 of the Convention on account of the failure to disclose in advance either the submissions of the officer concerned or those contained in the reporting judge’s report and the impossibility of replying to them. The Court also points out that in Borgers, which concerned the role of the Advocate-General at the Court of Cassation in criminal proceedings, it held that there had been a breach of Article 6 § 1 of the Convention, principally because of the Advocate-General’s participation in the Court of Cassation’s deliberations, which had infringed the principle of equality of arms. Subsequently, the aggravating factor of the relevant officer’s participation in the deliberations was taken into account only in Vermeulen and Lobo Machado (cited above, p. 234, § 34, and p. 207, § 32, respectively), in which it had been raised by the applicants; in all the other cases, the Court has emphasised the need to respect the right to adversarial procedure, noting that this entails the parties’ right to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service. Lastly, the Court points out that Borgers, J.J. v. the Netherlands and Reinhardt and Slimane-Kaïd concerned criminal proceedings or ones with a criminal connotation. Vermeulen, Lobo Machado and K.D.B. v. the Netherlands were concerned with civil proceedings or ones with a civil connotation, while Van Orshoven concerned disciplinary procedures against a doctor. 2. As to the alleged special character of the administrative courts 66. None of those cases concerned a dispute brought before the administrative courts, and the Court must therefore consider whether the principles identified in its case-law as recapitulated above apply in the instant case. 67. It observes that since Borgers, cited above, all the governments have endeavoured to show before the Court that in their legal systems their advocates-general or principal State counsel were different from the Belgian procureur général, from the point of view both of organisation and of function. Their role was said, for instance, to differ according to the nature of the proceedings (criminal, civil or even disciplinary); they were said not to be parties to the proceedings or the adversaries of anyone; their independence was said to be guaranteed and their role limited to that of an amicus curiae acting in the public interest or to ensure that case-law was consistent. 68. The Government are no exception. They too maintained that the institution of Government Commissioner in French administrative proceedings differed from the other institutions criticised in the judgments cited above, because there was no distinction between the bench and State Counsel’s Office within the administrative courts; because the Government Commissioner, from the point of view of his status, was a judge in the same way as all the other members of the Conseil d’Etat; and because, from the point of view of his function, he was in exactly the same position as the reporting judge, except that he expressed his opinion publicly but did not vote. 69. The Court accepts that, in comparison with the ordinary courts, the administrative courts in France display a number of special features, for historical reasons. Admittedly, the very establishment and existence of administrative courts can be hailed as one of the most conspicuous achievements of a State based on the rule of law, in particular because the jurisdiction of those courts to adjudicate on acts of the administrative authorities was not accepted without a struggle. Even today, the way in which administrative judges are recruited, their special status, distinct from that of the ordinary judiciary, and the special features of the way in which the system of administrative justice works (see paragraphs 33-52 above) show how difficult it was for the executive to accept that its acts should be subject to review by the courts. As to the Government Commissioner, the Court equally accepts that it is undisputed that his role is not that of a State counsel’s office and that it is a sui generis institution peculiar to the organisation of administrative-court proceedings in France. 70. However, the mere fact that the administrative courts, and the Government Commissioner in particular, have existed for more than a century and, according to the Government, function to everyone’s satisfaction cannot justify a failure to comply with the present requirements of European law (see Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, p. 19, § 36). The Court reiterates in this connection that the Convention is a living instrument to be interpreted in the light of current conditions and of the ideas prevailing in democratic States today (see, among other authorities, Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 29, § 28). 71. No one has ever cast doubt on the independence or impartiality of the Government Commissioner, and the Court considers that his existence and institutional status are not in question under the Convention. However, the Court is of the view that the Commissioner’s independence and the fact that he is not responsible to any hierarchical superior, which is not disputed, are not in themselves sufficient to justify the assertion that the non-disclosure of his submissions to the parties and the fact that it is impossible for the parties to reply to them are not capable of offending against the principle of a fair trial. Indeed, great importance must be attached to the part actually played in the proceedings by the Government Commissioner, and more particularly to the content and effects of his submissions (see, by analogy, among many other authorities, Van Orshoven, cited above, p. 1051, § 39). 3. As regards the non-disclosure of the Government Commissioner’s submissions in advance and the impossibility of replying to them at the hearing 72. The Court reiterates that the principle of equality of arms – one of the elements of the broader concept of a fair trial – requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among many other authorities, Nideröst -Huber v. Switzerland, judgment of 18 February 1997, Reports 1997-I, pp. 107-08, § 23). 73. Irrespective of the fact that in most cases the Government Commissioner’s submissions are not committed to writing, the Court notes that it is clear from the description of the course of proceedings in the Conseil d’Etat (see paragraphs 40-52 above) that the Government Commissioner makes his submissions for the first time orally at the public hearing of the case and that the parties to the proceedings, the judges and the public all learn of their content and the recommendation made in them on that occasion. The applicant cannot derive from the right to equality of arms that is conferred by Article 6 § 1 of the Convention a right to have disclosed to her, before the hearing, submissions which have not been disclosed to the other party to the proceedings or to the reporting judge or to the judges of the trial bench (see Nideröst -Huber, cited above, ibid.). No breach of equality of arms has therefore been made out. 74. However, the concept of a fair trial also means in principle the opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision (see the following judgments, cited above: Vermeulen, p. 234, § 33; Lobo Machado, pp. 206-07, § 31; Van Orshoven, p. 1051, § 41; K.D.B., p. 631, § 44; and Nideröst -Huber, p. 108, § 24). 75. As regards the fact that it is not possible for parties to reply to the Government Commissioner’s submissions at the end of the hearing, the Court refers to Reinhardt and Slimane-Kaïd, cited above. In that case the Court found a breach of Article 6 § 1 because the reporting judge’s report, which had been disclosed to the Advocate-General, had not been communicated to the parties (ibid., pp. 665-66, § 105). On the other hand, with respect to the Advocate-General’s submissions, the Court stated: “The fact that the Advocate-General’s submissions were not communicated to the applicants is likewise questionable. Admittedly, current practice is for the Advocate-General to inform the parties’ lawyers no later than the day preceding the hearing of the tenor of his submissions and in cases where, at the request of the lawyers, there is an oral hearing, they are entitled to reply to his submissions orally and by a note sent to the court in deliberations ... In the light of the fact that only questions of pure law are argued before the Court of Cassation and that the parties are represented in that court by highly specialised lawyers, that practice affords parties an opportunity of apprising themselves of the Advocate-General’s submissions and commenting on them in a satisfactory manner. It has not, however, been shown that such a practice existed at the material time.” (p. 666, § 106) 76. Contrary to the position in Reinhardt and Slimane-Kaïd, it is not disputed that in proceedings in the Conseil d’Etat lawyers who so wish can ask the Government Commissioner, before the hearing, to indicate the general tenor of his submissions. Nor is it contested that the parties may reply to the Government Commissioner’s submissions by means of a memorandum for the deliberations, a practice which – and this is vital in the Court’s view – helps to ensure compliance with the adversarial principle. That was in fact what the applicant’s lawyer did in the instant case (see paragraph 26 above). Lastly, in the event of the Government Commissioner’s raising orally at the hearing a ground not raised by the parties, the presiding judge would adjourn the case to enable the parties to present argument on the point (see paragraph 49 above). That being so, the Court considers that the procedure followed in the Conseil d’Etat affords litigants sufficient safeguards and that no problem arises from the point of view of the right to a fair trial as regards compliance with the principle that proceedings should be adversarial. There has consequently been no violation of Article 6 § 1 of the Convention in this respect. 4. As regards the presence of the Government Commissioner at the Conseil d’Etat ’s deliberations 77. The Court notes that the Government’s approach to this question is to say that since the Government Commissioner is a full member of the trial bench, on which he functions, in a manner of speaking, like a second reporting judge, there should be no objection to his attending the deliberations or even to his voting. 78. The fact that a member of the trial bench has publicly expressed his view of a case could then be regarded as contributing to the transparency of the decision-making process. This transparency is likely to promote a more willing acceptance of the decision by litigants and the public inasmuch as the Government Commissioner’s submissions, if they are accepted by the trial bench, constitute a kind of commentary on the judgment. Where they are not so accepted and the Government Commissioner’s submissions are not reflected in the decision adopted in the judgment, they constitute a kind of dissenting opinion which will provide food for thought for future litigants and legal writers. Furthermore, this public presentation of a judge’s opinion would not breach the duty of impartiality inasmuch as the Government Commissioner, during the deliberations, is only one judge among others and his view cannot affect the decision of the other judges where he is in a minority, whatever type of bench is considering the case (section, combined sections, Division or Assembly). It should also be noted that in the instant case the applicant did not in any way call in question the Government Commissioner’s subjective impartiality or independence. 79. However, the Court observes that this approach is not consistent with the fact that although the Government Commissioner attends the deliberations, he has no right to vote. The Court considers that by forbidding him to vote, on the ground that the secrecy of the deliberations must be preserved, domestic law considerably weakens the Government’s argument that the Government Commissioner is truly a judge, as a judge cannot abstain from voting unless he stands down. Moreover, it is hard to accept the idea that some judges may express their views in public while the others may do so only during secret deliberations. 80. Furthermore, in examining, above, the applicant’s complaint concerning the failure to disclose the Government Commissioner’s submissions in advance and the impossibility of replying to him, the Court accepted that the role played by the Commissioner during administrative proceedings requires procedural safeguards to be applied with a view to ensuring that the adversarial principle is observed (see paragraph 76 above). The reason why the Court concluded that there had been no violation of Article 6 on this point was not the Commissioner’s neutrality vis-à-vis the parties but the fact that the applicant enjoyed sufficient safeguards to counterbalance the Commissioner’s power. The Court considers that that finding is also relevant to the complaint concerning the Government Commissioner’s participation in the deliberations. 81. Lastly, the doctrine of appearances must also come into play. In publicly expressing his opinion on the rejection or acceptance of the grounds submitted by one of the parties, the Government Commissioner could legitimately be regarded by the parties as taking sides with one or other of them. In the Court’s view, a litigant not familiar with the mysteries of administrative proceedings may quite naturally be inclined to view as an adversary a Government Commissioner who submits that his appeal on points of law should be dismissed. Conversely, a litigant whose case is supported by the Commissioner would see him as his ally. The Court can also imagine that a party may have a feeling of inequality if, after hearing the Commissioner make submissions unfavourable to his case at the end of the public hearing, he sees him withdraw with the judges of the trial bench to attend the deliberations held in the privacy of chambers (see, mutatis mutandis, Delcourt, cited above, pp. 16-17, § 30). 82. Since Delcourt, the Court has noted on numerous occasions that while the independence and impartiality of the Advocate-General or similar officer at certain supreme courts were not open to criticism, the public’s increased sensitivity to the fair administration of justice justified the growing importance attached to appearances (see Borgers, cited above, p. 31, § 24). It is for this reason that the Court has held that regardless of the acknowledged objectivity of the Advocate-General or his equivalent, that officer, in recommending that an appeal on points of law should be allowed or dismissed, became objectively speaking the ally or opponent of one of the parties and that his presence at the deliberations afforded him, if only to outward appearances, an additional opportunity to bolster his submissions in private, without fear of contradiction (see Borgers, Vermeulen and Lobo Machado, cited above, pp. 31-32, § 26, p. 234, § 34, and p. 207, § 32, respectively). 83. The Court sees no reason to depart from the settled case-law referred to above, even though it is the Government Commissioner who is in issue, whose opinion does not derive its authority from that of a State counsel’s office (see, mutatis mutandis, J.J. and K.D.B., cited above, pp. 612-13, § 42, and p. 631, § 43, respectively). 84. The Court also observes that it was not argued, as in Vermeulen and Lobo Machado, that the Government Commissioner’s presence was necessary to help ensure the consistency of case-law or to assist in the final drafting of the judgment (see, mutatis mutandis, Borgers, cited above, p. 32, § 28). It is clear from the Government’s explanations that the presence of the Government Commissioner is justified by the fact that, having been the last person to have seen and studied the file, he will be in a position during the deliberations to answer any question which might be put to him about the case. 85. In the Court’s opinion, the benefit for the trial bench of this purely technical assistance is to be weighed against the higher interest of the litigant, who must have a guarantee that the Government Commissioner will not be able, through his presence at the deliberations, to influence their outcome. That guarantee is not afforded by the current French system. 86. The Court is confirmed in this approach by the fact that at the Court of Justice of the European Communities the Advocate General, whose role is closely modelled on that of the Government Commissioner, does not attend the deliberations (Article 27 of the Rules of Procedure of the Court of Justice). 87. In conclusion, there has been a violation of Article 6 § 1 of the Convention on account of the Government Commissioner’s participation in the deliberations of the trial bench. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS TO THE LENGTH OF THE PROCEEDINGS 88. The applicant complained of the length of the medical-liability proceedings in the administrative courts. She alleged a violation of Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 89. In the Government’s submission, the case did not lend itself to a rapid disposal of the proceedings. The Government admitted, however, that the courts of first instance and appeal on points of law had probably been unable to show all the desirable diligence and they stated that they wished to leave the matter to the Court’s discretion. A. Period to be taken into consideration 90. The period to be taken into consideration began on 22 June 1987, when the preliminary compensation claim made to Strasbourg Hospital was refused (see X v. France, judgment of 31 March 1992, Series A no. 234 ‑ C, p. 90, § 31). It ended on 30 July 1997, with the delivery of the Conseil d’Etat ’s judgment. It therefore lasted ten years, one month and eight days. B. Reasonableness of the length of the proceedings 91. The Administrative Court ruled on this case – which, in the Court’s opinion, was not especially complex – on 5 September 1991; the Nancy Administrative Court of Appeal ruled on the applicant’s appeal on 8 April 1993; lastly, the Conseil d’Etat gave its judgment on the appeal on points of law on 30 July 1997. The Court considers that both at first instance and in the appeal on points of law there were substantial delays in the proceedings. The Conseil d’Etat ’s examination of the applicant’s appeal on points of law, in particular, took four years and a little over one month. 92. Having regard to its case-law on the subject, the Court holds that the length of the proceedings in issue did not satisfy the “reasonable time” requirement. There has consequently been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 93. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 94. The applicant sought 200,000 French francs (FRF) in respect of non-pecuniary damage, on account, firstly, of the considerable anxiety she had suffered because of the excessive length of the proceedings and, secondly, of the frustration she had felt at not being able to reply to the Government Commissioner’s submissions, which were unfavourable to her. 95. The Government did not express a view. 96. As regards the applicant’s complaint concerning the fairness of the proceedings in the Conseil d’Etat, the Court considers, in keeping with its case-law (see Vermeulen, cited above, p. 235, § 37), that the non-pecuniary damage alleged by the applicant is sufficiently compensated by the finding of a violation in paragraph 85 above. The applicant has, on the other hand, indisputably sustained non ‑ pecuniary damage on account of the excessive length of the proceedings. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards her FRF 80,000 under this head. B. Costs and expenses 97. The applicant sought, firstly, reimbursement of that part of the costs of FRF 72,625 incurred in the proceedings in the French courts which was related to the alleged violations (the need to lodge an ordinary appeal and an appeal on points of law). 98. The Government did not express a view. 99. If the Court finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before the Convention institutions but also those incurred in the national courts for the prevention or redress of the violation (see, in particular, Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, p. 2334, § 63). In the instant case the Court finds that the applicant did not incur such costs and expenses during the proceedings in issue. It notes, in particular, that at no time did the applicant make any criticism of the Government Commissioner in the three courts that dealt with her case. This part of the claim must consequently be dismissed. 100. The applicant also sought compensation of FRF 20,000 in respect of the costs and expenses she had incurred before the Convention institutions. 101. The Government did not express a view. 102. According to the Court’s case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum (see, for example, Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V). In the instant case, having regard to the information before it and the aforementioned criteria, the Court considers the sum of FRF 20,000 reasonable for the proceedings before it and awards the applicant that sum. C. Default interest 103. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 4.26% per annum. | The Court held that there had been a violation of Article 6 § 1 of the Convention on account of the Government Commissioner’s participation in the deliberations of the trial bench, finding that, irrespective of the Government Commissioner’s acknowledged objectivity, and despite the fact that he did not vote, his participation in the deliberations could afford him an additional opportunity to bolster his submissions in favour of one of the parties in the privacy of the deliberations room. In particular, the Court drew attention once again to the public’s increased sensitivity to the fair administration of justice and again referred to the importance to be attached to appearances. Admittedly, as the last person to have seen and studied the file, the Government Commissioner was able to answer any questions put by the judges during the deliberations. However, that purely technical assistance given to the trial bench was to be weighed against the higher interest of the litigant, who had to have a guarantee that the Government Commissioner would not be able, through his presence at the deliberations, to influence their outcome. That guarantee was not afforded by the French system at the time. |
1,042 | Just satisfaction (Article 41 of the Convention) | II. RELEVANT DOMESTIC LAW A. Relevant legal provisions passed by the Government or Parliament 1. General organisation of the local administration 20. Under section 5 of the Local Public Administration Act of 1991 (Law no. 69/1991), local self-government was conferred on the local councils as legislative authorities and the mayor’s offices as executive authorities. 21. That Act was replaced on 23 April 2001 by a new Local Public Administration Act (Law no. 215/2001). Section 21 of that Act provides: “The local public administration authorities which ensure local self-government in municipalities and towns are the municipal authorities and the local town councils as legislative authorities, and the mayors’ offices as executive authorities.” 2. The services in charge of stray dogs 22. Section 39 of Law no. 60 of 29 October 1974 provided that the local authorities of each department were in charge of ensuring proper veterinary activity and thus entitled, inter alia, to “organise the capture and destruction of stray dogs”. 23. Section 39 of Law no. 60/1974 was amended on 28 August 1998 to provide that the local authorities were in charge of “organising the capture of stray dogs and employing, for this purpose, specific techniques authorised by international veterinary norms”. 24. On 13 December 2001 Emergency Decree no.155/2001 on the stray dogs management programme entered into force. Its relevant provisions provide: “1. The local councils must create, within 30 days from the entry into force of this decree, specialised services in order to manage the stray dogs situation. [...] 4. Stray dogs shall be captured and transported to the shelters of specialised services set up for [this purpose], where they will be kept for up to seven days [...]. 5. (1) Following an examination by the veterinary doctor, any stray dogs that are aggressive or suffer from chronic or incurable illnesses shall be euthanised immediately [...]. [...]. 7. (1) Dogs which have not been claimed or adopted after the expiry of the seven-day time-limit referred to in Article 4 above shall be euthanised. [...]. ” 25. Section 1(2) of Law no. 205/2004 on the protection of animals, which entered into force on 24 June 2004, provided that the rules governing stray dogs on the territory of Romania would be adopted by means of a specific law. 26. On 15 January 2008 Law no. 9/2008, amending Law no. 205/2004, entered into force. It forbade, inter alia, the euthanasia of stray dogs. 27. In November 2009 a draft Law on stray dogs was put on the agenda of Parliament. The draft, which provided, inter alia, for a duty on the authorities to capture and euthanise all stray dogs in order to preserve the safety and health of the population, was rejected by the Senate on 25 November 2009. It is currently pending before the Chamber of Deputies, without any date set for its discussion so far, according to the web page of the Romanian Chamber of Deputies. B. Relevant specific regulations in force in the City of Bucharest 28. Article 1 of Decision no. 38 of 2 January 1996 of the Bucharest Municipal Council on the breeding, maintenance and circulation of animals in Bucharest provides as follows: “With effect from the date of the present decision, the Municipal Knackers Service shall be renamed the Animal Control Agency, a public body with legal status functioning under the authority of the Bucharest Municipal Council and staffed by 33 to 50 employees.” 29. Annex no.1, Chapter 1, of Decision no. 75 of 16 May 1996 of the Bucharest Municipal Council on the breeding, maintenance and circulation of animals in Bucharest provides, in its relevant parts, as follows: “a) The service provider within the Animal Control Agency has a duty to capture stray dogs on the basis of written complaints received from private or legal persons. ... c) The captured animals shall be sterilised, vaccinated, disinfested and identified in an integrated database, with the exception of those that are to be euthanised. d) Dogs shall be returned to the area in question upon request by the community (private or legal persons); these dogs shall have the protected status of community dogs ( câini comunitari ). e) Responsibility for community dogs shall be assumed by the community requesting the dogs’ return.” 30. Article 2 of Decision no. 82 of 19 April 2001, issued by the Bucharest General Council regarding the programme for the sterilisation of stray dogs in Bucharest, provides: “Bearing in mind that the Animal Control Agency is placed under the authority of the Bucharest General Council, the analysis, supervision and monitoring of compliance with the programme for the sterilisation of stray dogs in Bucharest shall henceforth be entrusted to the commission created for this purpose by Decision no.149/2000 ....” 31. Article 1 of Decision no. 287 of 31 October 2001 of the Bucharest Municipal Council on the improvement of the ACA’s activities provides: “The Animal Control Agency shall cease its activity with effect from 15 November 2001. From that date onwards, the organisation, control and monitoring of animals shall be undertaken by the mayor’s offices of Bucharest districts nos. 1 to 6, each within its own area of authority.” 32. Article 1 of Decision no. 105 of 10 April 2003 of the Bucharest Municipal Council on the functioning of the ACA provides as follows: “With effect from 15 April 2003, the Animal Control Agency, as a legal person having the aforesaid purpose, shall be placed under the authority of the Bucharest Municipal Council.” III. RELEVANT INTERNATIONAL INSTRUMENTS AND OTHER REPORTS A. Relevant instruments of the Council of Europe 33. Article 12 of the European Convention for the Protection of Pet Animals, ratified by Romania on 6 August 2004 (ETS no.125 – Strasbourg, 13 November 1987), provides: Article 12 – Reduction of numbers “When a Party considers that the numbers of stray animals present it with a problem, it shall take the appropriate legislative and/or administrative measures necessary to reduce their numbers in a way which does not cause avoidable pain, suffering or distress. a Such measures shall include the requirements that: i if such animals are to be captured, this is done with the minimum of physical and mental suffering appropriate to the animal; ii whether captured animals are kept or killed, this is done in accordance with the principles laid down in this Convention; b Parties undertake to consider: i providing for dogs and cats to be permanently identified by some appropriate means which causes little or no enduring pain, suffering or distress, such as tattooing as well as recording the numbers in a register together with the names and addresses of their owners; ii reducing the unplanned breeding of dogs and cats by promoting the neutering of these animals; iii encouraging the finder of a stray dog or cat to report it to the competent authority.” B. Reports concerning the situation of stray dogs in Romania 1. Media reports of stray dog attacks 34. Since the mid-1990s the Romanian and foreign printed, on-line and audiovisual media have regularly reported on the large number of stray dogs on the streets and the problems that have ensued: attacks by stray dogs resulting in serious injuries to many people or even death in some cases; huge indignation caused in Romania and abroad by a number of actions taken by the authorities and with the purpose of euthanising some of the stray dogs; organisation of donation campaigns in favour of the sterilisation of stray dogs, and so on. By the year 2000, the population of stray dogs in the city of Bucharest alone numbered some 200,000. In March 2001 the mayor of Bucharest decided to have recourse to euthanasia, in the light of statistics for the city of Bucharest indicating that the population of stray dogs had doubled between 1996 and 2001; that in 2000 some 22,000 persons had received medical care following attacks by stray dogs; that from the beginning of 2001 more than 6,000 persons had been bitten by stray dogs; and that the persons most vulnerable to such attacks and seriously injured were children and elderly people. The international media widely reported on the mayor’s attempt to tackle this issue, as well as on the other solutions envisaged by candidates in local elections throughout the country, and on the criticism of euthanasia measures by certain international public figures, such as the actress Brigitte Bardot, who in 2001 had donated some 100,000 euros to the City of Bucharest for the purpose of sterilising stray dogs instead of killing them. The euthanasia campaign in Bucharest was stopped in 2003, after some 80,000 dogs had been euthanised. In 2005 the media reported that the population of stray dogs had again risen alarmingly, and that between 40 and 50 complaints of dog attacks were being registered daily by the animal control service in the Bucharest City Hall. The issue of the situation of stray dogs in Romania, as a public health issue, and the proposed ways of tackling it by legislative measures, was reportedly raised by various Romanian politicians with European Union bodies. 35. Specific incidents were also widely and regularly covered by the media from 2000. Thus, national newspapers such as Evenimentul Zilei, Ziua and Adevărul reported on their internet pages the death of a sixty-eight-year-old Japanese businessman after being bitten by a stray dog in the centre of Bucharest and the death of a two-year-old boy and a forty-five year old schizophrenic, both bitten by stray dogs in Craiova. Several news agencies, such as Mediafax and Ziare.com, and most newspapers reported on the death in similar circumstances of a six-year-old girl and of two other elderly persons in various major cities throughout Romania. In January 2011, an elderly woman was bitten to death by stray dogs in the centre of Bucharest. 36. According to the news agency Hotnews, the number of persons bitten by stray dogs in Bucharest has kept on increasing every year; for instance, it is reported that between November 2009 and February 2010, some 10,000 persons were bitten by stray dogs in Bucharest alone. 2. Official statistics of the Romanian authorities 37. The Government have not submitted any official statistics or reports on the issue of stray dogs in Romania. 38. On 13 October 2009, the advisory body to the prefect, the Prefectural College, met and discussed, inter alia, the issue of stray dogs on the streets of Bucharest. In a statement published on the website of the Bucharest Prefect’s Office following this meeting, the prefect stated that the problem of stray dogs was not yet solved and mentioned that: “... although they have been sterilised and have an identification microchip, they can still bite and therefore pose a threat to our health, our children’s health and to visitors to Bucharest.” The Prefect of Bucharest further stated that the data received from the Institute of Infectious Diseases of Bucharest were worrying and showed that a total of 9,178 persons had been bitten by stray dogs in Bucharest during the first six months of 2009, of which 1,678 were children. He also quoted a report by the Animal Control Agency, according to which 38% of the dogs collected by that authority from the streets of Bucharest in the first half of 2009 were infested with leptospirosis, an infectious disease transmissible to humans and which can cause meningitis, liver damage and renal failure. 39. On 2 February 2010, in a press release published on the website of the Bucharest Prefect’s Office, the same prefect stated that there were almost 100,000 stray dogs in Bucharest and that more than 10,000 people were bitten every year. 40. In an interview of 27 April 2010 the prefect of Bucharest indicated that, according to the latest statistics, the number of stray dogs in the streets of Bucharest was between 40, 000, according to the NGOs, and 100,000, according to the local administration, that in 2009 around 7, 000 persons had been bitten in Bucharest by stray dogs, that in the first four months of 2010 the number of persons bitten by stray dogs was more than 2,000, and the costs for the treatment of these persons was about 400,000 euros per year. The prefect further indicated that he had proposed a draft law allowing the euthanasia of stray dogs in certain circumstances. THE LAW I. ADMISIBILITY 41. In their observations on the admissibility and merits submitted on 4 September 2006, the Government raised the preliminary objection that the applicant Georgel Stoicescu lacked victim status and requested the Court to declare the application inadmissible in his regard. 42. The Court points out that, in its decision of 7 April 2006, it had already declared the application inadmissible with respect to the applicant Georgel Stoicescu. 43. On 10 September 2008 Mr Georgel Stoicescu informed the Court that his wife, Mrs Georgeta Stoicescu, had died on 29 December 2007 and that he wished to pursue the proceedings as her legal heir. Having regard to the extensive case-law on this issue (see, for instance, Vocaturo v. Italy, no. 11891/85, § 2, 24 May 1991, and Dalban v. Romania [GC], no. 28114/95, § 1, 28 September 1999), the Court considers that Mr Georgel Stoicescu may continue the present application as spouse of the deceased applicant Georgeta Stoicescu. 44. Furthermore, the Court finds that the application, as it had been submitted by the applicant Georgeta Stoicescu, is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 45. Relying on Articles 3 and 8 of the Convention, the applicant complained about the attack on her by a pack of stray dogs, submitting that this was due to the failure by the authorities to implement adequate measures against the numerous stray dogs in Bucharest, which were a danger for the safety of the inhabitants. The Court considers that in the particular circumstances of the present case these complaints fall to be examined under Article 8 of the Convention, which reads, in so far as relevant: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties’ submissions 46. The applicant complained that the attack on her on 24 October 2000 by a pack of stray dogs constituted a breach of her right to physical integrity. The attack had had severe consequences for her state of health, which, having regard to her advanced age and lack of financial means to pay for medical care, had caused her serious physical and mental suffering. She alleged that the incident and its consequences were due to the lack of action on the part of the Romanian authorities to solve the problem of stray dogs and ensure the safety and health of the population. Accordingly, the State had failed in its positive obligations under Article 8 to protect the applicant’s physical and moral integrity and prevent intrusion into her private life. 47. The Government denied that the State authorities bore responsibility for the attack suffered by the applicant. They considered that the State’s responsibility for actions that were not directly attributable to its agents could not extend to all occurrences of accidents or natural catastrophes. They relied in this connection on the cases of Oneryildiz v. Turkey ([GC], no. 48939/99, ECHR 2004-XII), Osman v. the United Kingdom ([GC], no. 23452/94, 28 October 1998, Reports of Judgments and Decisions 1998-VIII), and Ignaccolo-Zenide v. Romania (no. 31679/96, ECHR 2000-I, 25 January 2000). More specifically, they contended that the situation of stray dogs in Romania had deep and complex causes and therefore the responsibility for incidents such as the one in the instant case lay not only with the State, but also with society (private persons and NGOs). They pointed out that in 2000, when the incident had occurred, the canine population had been protected by the NGOs for the protection of animals and could not be euthanised. It was only in 2001 that the euthanasia of dogs had been made possible, and, as a result, the Bucharest authorities, with the aid of inspectors in the field, had taken the appropriate measures to prevent the occurrence of such incidents. B. The Court’s assessment 1. General principles 48. While the essential object of Article 8 is to protect individuals against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference since it may also give rise to certain positive obligations to ensure effective respect for the rights protected by Article 8 (see, among other authorities, X and Y v. the Netherlands, no. 8978/80, § 23, 26 March 1985). The positive obligations under Article 8 of the Convention may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, amongst others, Stjerna v. Finland, no. 18131/91, § 38, 25 November 1994, and Botta v. Italy, no. 21439/93, § 33, 24 February 1998). 49. The Court has previously held, in various contexts, that the concept of private life includes a person’s physical and psychological integrity and that the States have a positive obligation to prevent breaches of the physical and moral integrity of an individual by other persons when the authorities knew or ought to have known of those breaches (see X and Y v. the Netherlands, cited above, §§ 22 and 23; Costello-Roberts v. the United Kingdom, no. 38719/97, § 118, 10 October 2002; and M.C. v. Bulgaria, no. 39272/98, §§ 73 and 149, ECHR 2003 ‑ XII,). The Court has also held that a positive obligation exists upon States to ensure respect for human dignity and the quality of life in certain respects (see L. v. Lithuania, no. 27527/03, § 56, 11 September 2007, and, mutatis mutandis, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002-III). 50. Furthermore, in its recent ruling in A.B. and C. v. Ireland ([GC], no. 25579/05, 16 December 2010, §§ 247-249, with further references), the Court reiterated the following principles on the notion of positive obligations: “247. The principles applicable to assessing a State’s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, the aims in the second paragraph of Article 8 being of a certain relevance ( Gaskin v. the United Kingdom, 7 July 1989, § 42, Series A no. 160; and Roche v. the United Kingdom [GC], cited above, § 157). 248. The notion of “respect” is not clear cut especially as far as positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case ( Christine Goodwin v. the United Kingdom [GC], cited above, § 72). Nonetheless, certain factors have been considered relevant for the assessment of the content of those positive obligations on States. Some factors concern the applicant: the importance of the interest at stake and whether “fundamental values” or “essential aspects” of private life are in issue ( X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91; and Gaskin v. the United Kingdom, 7 July 1989, § 49, Series A no. 160); and the impact on an applicant of a discordance between the social reality and the law, the coherence of the administrative and legal practices within the domestic system being regarded as an important factor in the assessment carried out under Article 8 ( B. v. France, 25 March 1992, § 63, Series A no. 232 ‑ C; and Christine Goodwin v. the United Kingdom [GC], cited above, §§ 77-78). Some factors concern the position of the State: whether the alleged obligation is narrow and defined or broad and indeterminate ( Botta v. Italy, 24 February 1998, § 35, Reports of Judgments and Decisions 1998 ‑ I); and the extent of any burden the obligation would impose on the State ( Rees v. the United Kingdom, 17 October 1986, §§ 43-44, Series A no. 106; Christine Goodwin v. the United Kingdom [GC], cited above, §§ 86-88).” 51. The obligation to adopt appropriate measures must be interpreted in a way that does not impose an impossible or disproportionate burden on the authorities. For the Court, not every claimed risk to the physical integrity can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. In the opinion of the Court, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life or the physical integrity of an indentified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Amaç and Okkan v. Turkey, no. 54179/00, 54176/00, § 46, 20 November 2007; mutatis mutandis, Osman cited above, §§ 116 and 121, and Berü v. Turkey, no. 47304/07, § 39, 11 January 2011). 52. Lastly, the Court has held that if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation to set up an “effective judicial system” does not necessarily require criminal proceedings to be brought in every case and may be satisfied if civil, administrative or even disciplinary remedies were available to the victim (see, for example, Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VIII, and Mastromatteo v. Italy [GC], no. 37703/97, §§ 90 and 94-95, ECHR 2002-VIII). 2. Application of those principles to the present case 53. The Court notes at the outset that the applicant was attacked, bitten and knocked to the ground by a pack of about seven stray dogs in a residential area of Bucharest. Undoubtedly, that attack and its consequences caused the applicant serious physical and psychological suffering (see paragraphs 7 to 10 above). 54. The Court further notes that the problem of stray dogs, regularly mentioned in the media after 1989, developed dramatically and became a public health and safety issue, having regard to the large number of persons attacked and injured by these dogs (see paragraphs 34 to 36 above). 55. Accordingly, the question to be determined by the Court is whether the facts of the case disclose a failure by the authorities of the respondent State to protect the physical and psychological integrity of the applicant, in breach of Article 8 of the Convention. 56. It is not disputed between the parties that the authorities had broad and detailed information on this issue, in particular the large number of stray dogs in the city of Bucharest and the danger they represented to the physical integrity and health of the population. The data available to the authorities also confirmed the regular occurrence of such incidents in the City of Bucharest (see paragraphs 34 to 36 above). 57. In that connection the Court notes that it was in 2001, after the occurrence of the incident in the present case, that the authorities acknowledged the special situation regarding the population of stray dogs, and on 19 April 2001 issued Decision no. 82 of the Bucharest General Council, and Emergency Decree no. 155/2001 on the stray dogs management programme, which entered into force on 13 December 2001. Both legal acts provided for stray dogs to be captured and neutered or euthanised (see paragraphs 24 and 30 above). 58. The Court acknowledges that, even before the incident in the present case occurred, regulations were in force in Romania providing a legal basis for the creation of specific structures in charge of the control of stray dogs (see paragraphs 20, 22 and 23 above). These regulations were modified several times after the incident in 2000. The changes concerned mainly the organisation and supervision of the structures in charge of controlling the population of stray dogs, and the treatment reserved to these dogs after their capture. However, it notes that, despite these regulations, the situation continued to be critical, with several thousands of persons being injured by stray dogs in the City of Bucharest alone (see paragraphs 34 to 36 above). The Court agrees with the Government in this context that responsibility for the general situation of stray dogs in Romania also lies with civil society. 59. It is not the Court’s task to substitute itself for the competent domestic authorities in determining the best policy to adopt in dealing with problems of public health and safety such as the issue of stray dogs in Romania. In that connection it accepts that an impossible or disproportionate burden must not be imposed on the authorities without consideration being given in particular to the operational choices which they must make in terms of priorities and resources (see Osman cited above, § 116, and Hajduová v. Slovakia, no. 2660/03, § 47, 30 November 2010); this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult spheres such as the one in issue in the instant case (see, mutatis mutandis, Hatton and Others v. the United Kingdom [GC], no. 36022/97, §§ 100-101, ECHR 2003-VIII, and Oneryildiz cited above, § 107). In assessing compliance with Article 8, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. This is also true in cases where a general problem for the society reaches a level of gravity such that it becomes a serious and concrete physical threat to the population. The Court must also look behind appearances and investigate the realities of the situation complained of. That assessment may also involve the conduct of the parties, including the means employed by the State and their implementation. Indeed, where an issue in the general interest is at stake, which reaches a degree of gravity such that it becomes a public health issue, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner (see, mutatis mutandis, Hutten-Czapska v. Poland [GC], no. 35014/97, § 168, ECHR 2006-VIII). In its assessment, the Court accepts that the measures and actions to be adopted and taken are not an obligation of result, but an obligation of means. 60. In this context, the Court notes that the judgment of 19 June 2001 of the Bucharest County Court addressed the merits of the applicant’s complaints. It held that the Animal Control Agency, a public body, had not taken all necessary measures to avoid endangering the lives of the population and to preserve their health and physical integrity, and that the attack on the applicant had put her life and health in danger, causing her physical and psychological suffering and depriving her of a normal life on account of her fear of another attack. However, the above-mentioned judgment was quashed for procedural reasons and the applicant’s subsequent attempts to have a court decision providing her appropriate redress failed as well. 61. Furthermore, the Court observes that, apart from arguing that society in general should bear responsibility for the current situation of stray dogs in Romania, the Government have not provided any indication as to the concrete measures taken by the authorities at the time of the incident to properly implement the existing legislative framework with a view to addressing the serious problem of public health and threat to the physical integrity of the population represented by a large number of stray dogs. Neither have they indicated whether the regulations or practices at the time of the incident or adopted later were capable of providing appropriate redress for the cases of victims of attacks by stray dogs. In this connection, the Court notes that the above mentioned situation seems to persist (see paragraphs 34 to 36 above). 62. In the light of the foregoing, the Court finds that the lack of sufficient measures taken by the authorities in addressing the issue of stray dogs in the particular circumstances of the case, combined with their failure to provide appropriate redress to the applicant as a result of the injuries sustained, amounted to a breach of the State’s positive obligations under Article 8 of the Convention to secure respect for the applicant’s private life. 63. Accordingly, there has been a violation of that provision in the present case. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 64. The applicant complained that by dismissing her two civil actions for damages against the Bucharest local authorities the domestic courts had breached her right to a fair trial guaranteed by Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 65. The Government contested that argument. A. The parties’ submissions 66. The Government claimed that the fact of establishing procedural costs which were proportional to the amounts claimed in civil proceedings could not, in itself, represent an impediment to the right of access to a court. They relied on the Court’s case-law, for instance Z. v. the United Kingdom ([GC], no. 29392/95, § 93, ECHR 2001-V) and Tinnelly Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, § 72, Reports of Judgments and Decisions 1998-IV). They stressed that, in any event, the applicant’s case had been dealt with on the merits by the Bucharest County Court, which had also decided that the applicant was exempted from paying court fees. The fact that the judgment of 19 June 2001 of the Bucharest County Court was later quashed did not mean that the applicant was denied the right to a court, but merely that she had not lodged her case against the correct defendant. 67. The applicant complained that following the incident she had lived in a constant state of anxiety and was afraid to leave the house. Her psychological suffering had been aggravated by the impossibility of obtaining compensation and the authorities’ response to her complaints, namely, the dismissal of her civil actions, the fact that she had been sent from one institution to another and had even lost the amount of money she had paid in court fees. B. The Court’s assessment 68. The Court reiterates that Article 6 § 1 of the Convention guarantees everyone’s right to have his or her civil rights and obligations determined by a court. It thus enshrines a “right to a court”, of which the right of access, namely the right to apply to a court in civil proceedings, is only one aspect. However, the “right to a court” is not absolute. It lends itself to limitations since, by its very nature, it requires regulation by the State, which may select the means to be used for that purpose. However, these limitations must not restrict exercise of the right in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved (see, among other authorities, Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294 ‑ B; Bellet v. France, 4 December 1995, § 31, Series A no. 333-B; and Levages Prestations Services v. France, 23 October 1996, § 40, Reports of Judgments and Decisions 1996-V). 69. The Court has held that the amount of the fees, assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them and the phase of the proceedings at which that restriction has been imposed, are factors which are material in determining whether or not a person enjoyed his or her right of access to a court or whether, on account of the amount of fees payable, the very essence of the right of access to a court has been impaired (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 63, Series 316-B, and Kreuz (no. 1) v. Poland, no. 28249/05, § 60, ECHR 2001-VI). 70. Furthermore, the Court has considered to be excessive, and therefore impairing the very essence of the right of access to a court, high court fees, which were not justified by the applicant’s financial situation, but calculated on the basis of a set percentage laid down by law of the sum at stake in the proceedings (see Weissman and Others v. Romania, no. 63945/00, §§ 39 to 42, ECHR 2006-VII). 71. Finally, the Court has held that when a public entity is liable for damages, the State’s positive obligation to facilitate identification of the correct defendant is all the more important (see Plechanow v. Poland, no. 22279/04, § 109, 7 July 2009). 72. In the present case the Court observes that, theoretically, Romanian law afforded the applicant the possibility of bringing judicial proceedings for compensation under the Civil Code. The applicant availed herself of this possibility, claiming that the administration bore responsibility for the attack she had suffered. Despite her indigence, she had to pay court fees in order to have her case heard, but, given the domestic law providing that court fees be calculated on a percentage of the claims, she had to limit her claims before the domestic courts. Moreover, although the Bucharest County Court ruled on 19 June 2001 that the applicant was exempted from paying the court fee, the money she had paid on that account was never returned to her. 73. The Court further notes that even after partially overcoming the obstacle of the court fee, the applicant did not obtain a final ruling on the merits of her civil claim because her case was repeatedly dismissed without an examination of the merits, on the ground that she had failed to identify specifically the local authority supervising the body in charge of stray dogs: in the first set of proceedings the Bucharest Municipal Council and not the Bucharest mayor’s office, and in the second set of proceedings, the Bucharest district mayor’s offices and neither the Bucharest Municipal Council nor the ACA. 74. The Court observes that the fact of having access to domestic remedies only to be told that the action is dismissed as a result of interpretation of the legal capacity of a defendant authority, compared with that of one of its departments or executive bodies, can raise an issue under Article 6 § 1. The degree of access afforded by the national legislation and its interpretation by the domestic courts must also be sufficient to secure the individual’s “right to a court”, having regard to the principle of the rule of law in a democratic society. For the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his or her rights (see, mutatis mutandis, Bellet, cited above, § 36, and F.E. v. France, 30 October 1998, §§ 46 and 47, Reports 1998-VIII). 75. In this connection the Court notes that, according to both Local Administration Acts (no. 69/1991 and no. 215/2001), the mayor’s offices are the executive bodies of the municipal councils, the latter being in charge of setting up services for stray dogs, while the former implement this specific policy. In the present case the stamp on the paper issued by the ACA had the name of the Bucharest Mayor’s Office embossed on it (see paragraph 11 above). The applicant could therefore reasonably believe, and neither the Bucharest County Court in the first set of proceedings nor the defendant authority had stated otherwise, that the Bucharest’s Mayor Office had legal standing before a court in a matter concerning the ACA’s activity and responsibilities. The Court therefore finds that, in the context of local organisational changes in the field of animal control, shifting onto the applicant the duty of identifying the authority against which she should bring her claim was a disproportionate requirement and failed to strike a fair balance between the public interest and the applicant’s rights. 76. Consequently, the Court finds that the applicant did not have a clear, practical opportunity of claiming compensation in a court for the attacks suffered. Therefore, in the light of all the above elements, the Court considers that the applicant did not have an effective right of access to a court. There has therefore been a breach of Article 6 § 1. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 77. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 78. The applicant submitted that she was entitled to non-pecuniary damages on account of the infringement of her right to physical integrity and private life but left the amount to the Court’s discretion. 79. The Government contended that a finding of a violation of the Convention would in itself constitute sufficient just satisfaction. 80. The Court considers that the applicant must have suffered distress and psychological trauma resulting from the attack as well as from the shortcomings found in the authorities’ approach in the present case, namely, dismissing her civil actions for damages and sending her from one institution to another without awarding compensation. Moreover, in assessing the suffering that the applicant must have been experienced regard must also be had to her dire financial situation, her advanced age and deteriorating state of health and to the fact that she was unable to benefit from free medical assistance and medicines until two and a half years after the incident. In conclusion, the Court, having found a breach of the State’s positive obligations under Article 8 of the Convention and of the applicant’s right to a court under Article 6 § 1 of the Convention in the present case, therefore makes an assessment on an equitable basis as provided for by Article 41 of the Convention and awards the applicant EUR 9,000 in respect of non-pecuniary damage. B. Costs and expenses 81. The applicant also claimed ROL 500,000 (EUR 20) in respect of expenses incurred before the domestic courts, namely, the court fee paid in order to file her first civil action with the Bucharest District Court. 82. The Government did not dispute the applicant’s claim. 83. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 20 for costs and expenses in the domestic proceedings. C. Default interest 84. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that, in the particular circumstances of the case, by failing to take sufficient measures to address the issue of stray dogs and to provide appropriate redress to the second applicant for her injuries, the authorities had failed to discharge their positive obligation to secure respect for her private life. The Court further held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention, as the second applicant had been denied a clear, practical opportunity of claiming compensation in court for the attack and had therefore not had an effective right of access to a court. Lastly, regarding the amount to be awarded in the present case in respect of damage, under Article 41 (just satisfaction) of the Convention, the Court observed that, in assessing the suffering that the applicant must have been experiencing, regard was also to be had to her dire financial situation, her advanced age and deteriorating state of health and to the fact that she had been unable to benefit from free medical assistance and medicines until two and a half years after the incident. |
845 | null | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Basic Law 24. The provisions of the Basic Law, in so far as relevant for the present case, read: Article 1 “1. Human dignity shall be inviolable. To respect and protect it shall be the duty of all State authority. ...” Article 2 “1. Every person shall have the right to free development of his personality in so far as he does not violate the rights of others or offend against the constitutional order or the moral law. ...” Article 10 “1. The privacy of correspondence, post and telecommunications shall be inviolable. 2. Restrictions may be ordered only pursuant to a law. If the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, the law may provide that the person affected shall not be informed of the restriction and that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature.” 25. In its judgment of 15 December 1983 (nos. 1 BvR 209, 269, 362, 420, 440, 484/83) the Federal Constitutional Court established the right to informational self-determination and held: “In the context of modern data processing, the protection of the individual against unlimited collection, storage, use and disclosure of his or her personal data is encompassed by the right to protection of personality rights under Article 2 § 1 in conjunction with Article 1 of the Basic Law. This basic right warrants in this respect the capacity of the individual to determine in principle the disclosure and use of his or her personal data.” 26. In its judgment of 2 March 2010 (nos. 1 BvR 256, 586, 263/08) the Federal Constitutional Court decided upon the constitutionality of provisions transposing EU Directive 2006/24/EC (see paragraphs 49-50 below) into German law (sections 113a and 113b of the Telecommunications Act and Article 100g of the Code of Criminal Procedure), which obliged service providers to store for a limited time (six months) all traffic data of telephone services and allowed the use of such data in the context of criminal prosecutions. The court declared section 113a of the Telecommunications Act (obligation to store) unconstitutional and void, owing to a violation of the right to protection of the secrecy of telecommunications. It held that a duty of storage to the extent provided was not automatically unconstitutional at the outset. However, it was not structured in a manner adapted to the principle of proportionality. The challenged provisions guaranteed neither adequate data security nor an adequate restriction of the purposes of use of the data. Nor did they in every respect satisfy the constitutional requirements of transparency and legal protection. B. Telecommunications Act 27. Section 111 of the Telecommunications Act obliges service providers to collect and store certain personal data of their customers. It thereby creates the basis for information requests under sections 112 and 113 of the Telecommunications Act. It read, at the relevant time and in so far as relevant, as follows: “(1) Any person commercially providing or assisting in providing telecommunications services and in so doing allocating telephone numbers or providing telecommunications connections for telephone numbers allocated by other parties or other identifiers of the respective allocation, is, for the information procedures under sections 112 and 113, to collect, prior to activation, and store without undue delay: 1. The telephone numbers and other identifiers of the respective allocation; 2. The name and address of the allocation holder; 3. The date of birth in the case of natural persons; 4. In the case of fixed lines, additionally the address for the line; 5. In cases in which a mobile-communication end device is made available together with the mobile-communication allocation, also the device number of the device in question, as well as; 6. The effective date of the contract. Even if such data are not necessary for operational purposes; where known, the date of termination of the contract is likewise to be stored. Sentence 1 also applies where the data are not included in directories of subscribers. ... A person with obligations under sentence 1 or sentence 3 receiving notice of any changes is to correct the data without undue delay; in this connection the person with obligations under sentence 1 is subsequently to collect and store data not yet recorded if collecting the data is possible with no special effort. The manner in which data for the information-retrieval procedure provided for under section 113 are stored is optional. (2) Where the service provider in accordance with subsection (1), sentence 1 or sentence 3, operates in conjunction with a sales partner, such a partner shall collect data according to subsection (1), sentences 1 and 3, under the pre-requisites set out therein and shall transmit to the service provider, without undue delay, these and other data collected under section 95; subsection (1), sentence 2, applies accordingly. Sentence 1 also applies to data relating to changes, inasmuch as the sales partner receives notice of them in the course of normal business transactions. (3) Data within the meaning of subsection (1), sentence 1 or sentence 3, need not be collected subsequently for contractual relationships existing on the date of entry into force of this provision, save in the cases referred to in subsection (1), sentence 4. (4) The data are to be erased upon expiry of the calendar year following the year in which the contractual relationship ended. ...” 28. In July 2016 section 111 of the Telecommunications Act was amended and an obligation for service providers to verify prior to collection the personal data of the mobile-telephone user was included. Presentation of an identity card, a passport or other official identity document is required when the data are being registered initially. The amendment had been considered necessary to further restrict the possibilities available for circumventing the obligations laid down in section 111 of the Telecommunications Act. According to the preparatory work of the amendment (Publication of the Federal Parliament ( Bundestagsdrucksache ) no. 18/8702, p. 22), a considerable amount of false data had been found in the telecommunications providers’ databases, which had the character of a mass phenomenon. Requests of the relevant authorities pursuant to sections 112 and 113 of the Telecommunications Act had therefore in many procedures not resulted in useful information being provided. A constitutional complaint challenging the compatibility of this amendment with the Basic Law is currently pending before the Federal Constitutional Court (no. 1 BvR 1713/17). 29. Section 112 of the Telecommunications Act sets out an automated procedure for the data stored under section 111 of the Telecommunications Act. In accordance with this procedure, providers of telecommunications services must supply the data in such a way that they can be retrieved by the Federal Network Agency without the knowledge of the providers. Moreover, the possibility of data retrieval using incomplete search data or a search with a similarity function must be provided. The relevant parts of section 112 of the Telecommunications Act read at the relevant time: “(1) Any person providing publicly available telecommunications services shall store, without undue delay, data collected under section 111(1), sentences 1, 3 and 4, and subsection (2) in customer data files .... The obligated person shall ensure that: 1. the Federal Network Agency is enabled, at all times, to retrieve data from customer data files by way of automation within Germany; 2. data can be retrieved using incomplete search data or searches made by means of a similarity function. The obligated person and his agent are to ensure by technical and organisational measures that no retrievals can come to their notice. The Federal Network Agency may retrieve data from customer databases only to the extent that knowledge of the data is necessary: 1. in order to prosecute administrative offences under the present Act or under the Unfair Competition Act [ Gesetz gegen den unlauteren Wettbewerb ]; 2. in order to process requests for information lodged by the bodies set out in subsection (2). The requesting body shall verify without undue delay to what extent it needs the data transmitted in response to its request and shall erase any data it does not need without undue delay; this shall also apply to the Federal Network Agency regarding the retrieval of data in accordance with sentence 7, no. 1. (2) Information from the customer data files according to subsection (1) shall be provided to: 1. the courts and criminal prosecution authorities; 2. Federal and Land law-enforcement authorities for purposes of averting danger; 3. the Customs Criminal Investigations Office [ Zollkriminalamt ] and customs investigation offices [ Zollfahndungsämter ] for criminal proceedings and the Customs Criminal Investigations Office for the preparation and execution of measures under section 23a of the Customs Investigation Service Act [ Zollfahndungsdienstgesetz ]; 4. Federal and Land offices for the protection of the Constitution, the Federal Armed Forces Counter-Intelligence Office, and the Federal Intelligence Service; 5. the emergency service centres under section 108 and the service centre for the maritime mobile emergency number ‘124 124’; 6. the Federal Financial Supervisory Authority; and 7. the authorities of the customs administration for the purposes listed in section 2(1) of the Undeclared Work Act [ Schwarzarbeitsbekämpfungsgesetz ] via central enquiries offices as stipulated in subsection (4), at all times, as far as such information is needed to discharge their legal functions and the requests are submitted to the Federal Network Agency by means of automated procedures. ... (4) At the request of the authorities referred to in subsection (2), the Federal Network Agency is to retrieve and transmit to the requesting authority the relevant data sets from the customer data files in accordance with subsection (1). It shall examine the admissibility of the transmission only where there is special reason to do so. Responsibility for such admissibility lies with: 1. the Federal Network Agency, in the cases governed by subsection (1), sentence 7, no. 1; and 2. the bodies set out in subsection (2), in the cases of subsection (1), sentence 7, no. 2. For purposes of data-protection supervision by the competent body, the Federal Network Agency shall record, for each retrieval, the time, the data used in the process of retrieval, the data retrieved, information clearly identifying the person retrieving the data, as well as the requesting authority, its reference number, and information clearly identifying the person requesting the data. Use for any other purposes of data recorded is not permitted. Data recorded are to be erased after a period of one year. ...” 30. In June 2017 a regulation was issued concerning the automatic retrieval procedure under section 112 of the Telecommunications Act. This subscriber data information regulation ( Kundendatenauskunftsverordnung ) describes in more detail the possibilities of requesting information based on the address, name or telephone number of subscribers and outlines the required information to be provided for the requested search. In addition, it regulates searches based on incomplete data and searches made by means of a similarity function. The regulation was accompanied by a technical directive, setting the technical standards for the searches and for communication between the Federal Network Agency, the requesting authorities and the telecommunications providers. 31. Section 113 of the Telecommunications Act provides for a manual procedure for requesting data stored pursuant to section 111 of the Telecommunications Act. In contrast to the automated information procedure, this provides for a duty of the service providers themselves to supply information to the entitled authorities. In the same way as in the automated information procedure, confidentiality regarding information requests in respect of the persons to whom the data relate must be preserved. Section 113 does not contain an exhaustive list of the authorities entitled to receive information thereunder. Information requests are permissible in so far as they are necessary to prosecute criminal and regulatory offences, to avert danger ( Gefahrenabwehr ) and to perform intelligence tasks. Section 113 of the Telecommunications Act read, in so far as relevant, at the relevant time: “(1) Any person commercially providing or assisting in providing telecommunications services may use, subject to the stipulations of subsection (2), the data collected under sections 95 and 111 in accordance with this provision of the Law in order to fulfil its obligations to provide information to the bodies listed in subsection 3. ... (2) The information may be provided only inasmuch as one of the bodies set out in paragraph 3 has requested that this be done, in text form, in an individual case in order to prosecute criminal or administrative offences, in order to avert danger to public safety or order, and in order to discharge the legal functions of the bodies set out in subsection (3), no. 3, citing a provision of the law that allows it to so collect the data referenced in subsection (1); no data pursuant to subsection (1) may be transmitted to any other public or non-public bodies. In the case of imminent danger, the information may be provided also if the request is made in a form other than text form. In such an event, the request is to be confirmed subsequently in text form; this shall be done without undue delay. Responsibility for the admissibility of the request for information lies with the bodies set out in subsection (3). (3) The following are ‘bodies’ in the sense of subsection (1): 1. The authorities responsible for prosecuting criminal or administrative offences; 2. The authorities responsible for preventing threats to public security or to public order; 3. Federal and Land offices for the protection of the Constitution, the Federal Armed Forces Counter-Intelligence Office, and the Federal Intelligence Service. (4) A person commercially providing or assisting in providing telecommunications services is to transmit the data to be provided pursuant to a request completely and without undue delay. The parties obligated to provide information are to keep confidential requests for information and the provision of information both vis-à-vis the party/parties affected and vis-à-vis third parties. ...” C. Legal basis for automated information requests under section 112 of the Telecommunications Act 32. Information requests in the context of criminal investigations by the public prosecutor’s office and the police under the automated procedure under section 112 of the Telecommunications Act are regulated in the Code of Criminal Procedure ( Strafprozessordnung ). The applicable Articles read, at the relevant time and in so far as relevant, as follows: Article 160 “1. As soon as the public prosecutor’s office obtains knowledge of a suspected criminal offence either through a criminal complaint or by other means it shall investigate the facts to decide whether public charges are to be brought. 2. The public prosecutor’s office shall ascertain not only incriminating but also exonerating circumstances, and shall ensure that evidence, the loss of which is to be feared, is taken. 3. The investigations of the public prosecutor’s office shall extend also to the circumstances which are important for the determination of the legal consequences of the act. For this purpose it may avail itself of the service of the court assistance agency.” Article 161 § 1 “For the purpose indicated in Article 160 § 1 to § 3 [of the CCP], the public prosecutor’s office shall be entitled to request information from all authorities and to initiate investigations of any kind, either itself or through the authorities and officials in the police force provided there are no other statutory provisions specifically regulating their powers. The authorities and officials in the police force shall be obliged to comply with such a request or order of the public prosecutor’s office and shall be entitled, in such cases, to request information from all authorities.” Article 163 § 1 “The authorities and officials in the police force shall investigate criminal offences and shall take all measures that may not be deferred, in order to prevent concealment of facts. To this end they shall be entitled to request, and in exigent circumstances to demand, information from all authorities, as well as to conduct investigations of any kind in so far as there are no other statutory provisions specifically regulating their powers. ...” 33. For the prevention of crime the Federal Office for Criminal Investigation ( Bundeskriminalamt ) and the Federal Police ( Bundespolizei ) may request information under the automated procedure under section 112 of the Telecommunications Act in accordance with the following provisions which read at the relevant time: Section 2 of the Federal Office for Criminal Investigation Act ( Bundeskriminalamtgesetz ) “(1) As the central office for the information and intelligence system of the police, the Federal Office of Criminal Investigation supports police forces at Land and federal level in the prevention and investigation of crimes of cross- Land, international or considerable importance (2) The Federal Office for Criminal Investigation shall for the performance of this task: 1. collect and analyse all, for this purpose, necessary, data; ...” Section 7 of the Federal Office for Criminal Investigation Act “(1) The Federal Office for Criminal Investigation may store, change or use personal data, in so far as required by its respective task as central office. (2) The Federal Office for Criminal Investigation may, in so far as required for the performance of its task as central office under section 2(2), no. 1, collect data via requests for information or enquiries at public and non-public entities for the supplementation of existing information or other analytic purposes. ...” Section 21 of the Federal Police Act ( Bundespolizeigesetz ) “(1) The Federal Police may, unless this chapter states otherwise, collect personal data in so far as required for the performance of its tasks. (2) For the prevention of criminal acts the collection of personal data is permitted, in so far as facts justify the presumption that: 1. an individual will commit a serious criminal act in the meaning of section 12(1) and that the information is required for the prevention of said criminal act; or 2. an individual is or will be in contact with an individual as described in no. 1 in a way that it can be expected that the measure will lead to the prevention of a criminal act as described in no. 1 and that the prevention in another way would be impossible or severely hampered.” 34. Provisions similar to section 21 of the Federal Police Act exist for the police forces of the Länder. In addition these police forces are also permitted to collect personal information in so far as necessary for averting danger and the protection of the rights of others. 35. Under section 7 and 27 of the German Customs Investigation Service Act, the Customs Criminal Investigations Office and the Customs Investigation Offices are authorised to collect personal information in so far as required for the performance of their tasks. In addition the customs authorities may collect information under Article 163 of the Code of Criminal Procedure (see paragraph 32 above) when investigating undeclared work. 36. The Federal and Land offices for the protection of the Constitution, may request the information stored pursuant to section 111 of the Telecommunications Act in so far as necessary for the performance of their tasks and not prohibited by the Federal Data Protection Act. 37. The Military Counter-Intelligence Office may, under section 4 of the Military Counter-Intelligence Office Act, collect the information required for its tasks, except for the assessment of the security situation of the offices and facilities under the administration of the Ministry of Defence, of allied forces or of international military headquarters. 38. Under section 2(1) of the Federal Intelligence Service Act, the Federal Intelligence Service may request information stored pursuant to section 111 of the Telecommunications Act, in so far as necessary and not prohibited by the Federal Data Protection Act: – for the protection of its personnel, facilities and sources against security-endangering activities and secret-service activities; – for vetting future or current personnel; – for the verification of incoming information, necessary for the performance of its tasks. D. Legal basis for manual information requests under section 113 of the Telecommunications Act 39. Owing to criticism by the Federal Constitutional Court of section 113(1) of the Telecommunications Act (see paragraphs 12 and 20-21 above) several new provisions regulating retrieval of data by authorities under the manual procedure under section 113 were introduced in June 2013, after this application had been lodged. 40. Information requests by the public prosecutor’s office and the police were subsequently regulated in Article 100j of the Code of Criminal Procedure, which in so far as relevant, reads: “1. In so far as necessary to establish the facts or to determine the whereabouts of an accused person, information on data collected pursuant to sections 95 and 111 of the Telecommunications Act may be requested from any person providing or collaborating in the provision of telecommunications services on a commercial basis (section 113(1), sentence 1, of the Telecommunications Act). ... 5. On the basis of a request for information under subsection (1) or (2), any person providing or collaborating in the provision of telecommunications services on a commercial basis shall transmit without delay the data required for the provision of the information. ...” Similar provisions were created for the Federal Police, the Federal Office of Criminal Investigation and the Customs Investigation Service. 41. The Federal Office for the Protection of the Constitution is permitted to request the data collected pursuant to section 111 of the Telecommunications Act from service providers under section 8d of the Federal Act on the Protection of the Constitution ( Bundesverfassungsschutzgesetz ), which reads in so far as relevant: “In so far as necessary for the performance of its tasks the Federal Office for the Protection of the Constitution may request from any person providing or collaborating in the provision of telecommunications services on a commercial basis information on data collected pursuant to sections 95 and 111 of the Telecommunications Act (section 113(1), sentence 1, of the Telecommunications Act). ...” Similar provisions were introduced for the offices for the protection of the Constitution of the Länder. Moreover, the legal basis for manual information requests by the Military Counter-Intelligence Office and the Federal Intelligence Service refer to section 8d of the Federal Act on the Protection of the Constitution. E. Judicial review of investigative measures 42. Under Article 98 § 2 of the Code of Criminal Procedure, a person affected by the seizure of an object in the absence of court involvement may apply for a court decision at any time. 43. In accordance with the well-established case-law of the Federal Court of Justice (see, for example, case no. 5 ARs (VS) 1/97, 5 August 1998), an analogous application of Article 98 § 2 of the Code of Criminal Procedure offers the possibility of judicial review of any completed investigative measure by a public prosecutor if the measure constituted a serious interference with the person’s fundamental rights. F. Data protection law 44. The relevant parts of the Federal Data Protection Act ( Bundesdatenschutzgesetz ), as in force until 24 May 2018, read as follows: Section 1 – Purpose and scope “(1) The purpose of this Act is to protect individuals against infringements of their right to privacy as the result of the handling of their personal data. (2) This Act shall apply to the collection, processing and use of personal data by 1. public bodies of the Federation, 2. public bodies of the Länder, where data protection is not covered by Land legislation and where the Länder (a) execute federal law, or (b) act as judicial bodies and administrative matters are not involved, ... (3) Where other federal laws apply to personal data and their publication, they shall take precedence over the provisions of this Act. The obligation to abide by legal obligations of secrecy or professional or special official secrecy not based on law shall remain unaffected.” Section 2 – Public and private bodies “(1) ’Public bodies of the Federation’ shall mean the authorities, judicial bodies and other public-law institutions of the Federation, of the direct federal corporations, institutions and foundations under public law, as well as their associations irrespective of their legal forms. ...” Section 3a – Data reduction and data economy “Personal data shall be collected, processed and used, and data-processing systems shall be chosen and organised in accordance with the aim of collecting, processing and using as little personal data as possible. In particular, personal data shall be rendered anonymous or aliased as allowed by the purpose for which they are collected and/or further processed, and in so far as the effort required is not disproportionate to the desired purpose of protection.” Section 4 – Lawfulness of data collection, processing and use “(1) The collection, processing and use of personal data shall be lawful only if permitted or ordered by this Act or other law, or if the data subject has given consent. (2) Personal data shall be collected from the data subject. They may be collected without the data subject’s participation only if 1. allowed or required by law, or 2. (a) the data must be collected from other persons or bodies on account of the nature of the administrative task to be performed or the commercial purpose, or (b) collecting the data from the data subject would require disproportionate effort and there are no indications that overriding legitimate interests of the data subject would be adversely affected.” Section 13 – Data collection “(1) Collecting personal data shall be lawful when knowledge of such data is necessary for the controller to perform its tasks. (1a) If personal data are collected from a private body rather than from the data subject, this body shall be informed of the legal provision requiring the supply of information or that such supply is voluntary.” Section 19 – Access to data “(1) Upon request, data subjects shall be given information on 1. recorded data relating to them, including information relating to the source of the data, 2. the recipients or categories of recipients to which the data are transferred, and 3. the purpose of recording the data. The request should specify the type of personal data on which information is to be given. If the personal data are recorded neither in automated format nor in non-automated filing systems, this information shall be provided only if the data subject provides information enabling the data to be located and if the effort required is not disproportionate to the data subject’s interest in the information. The controller shall exercise due discretion in determining the procedure for providing such information and in particular the form in which it is provided. (2) Subsection 1 shall not apply to personal data recorded only because they may not be erased owing to legal, statutory or contractual provisions on retention, or only for purposes of monitoring data protection or safeguarding data, where provision of the information would require a disproportionate effort. (3) If the provision of information relates to the transfer of personal data to authorities for the protection of the constitution, to the Federal Intelligence Service, the Military Counterintelligence Service and, as far as the security of the Federation is concerned, other agencies of the Federal Ministry of Defence, such provision shall be lawful only with the consent of these bodies. (4) Information shall not be provided if 1. the information would endanger the orderly performance of tasks for which the controller is responsible, 2. the information would threaten public security or order or otherwise be detrimental to the Federation or a Land, or 3. the data or the fact of their recording, in particular on account of the overriding legitimate interests of a third party, must be kept secret by law or because of the nature of the data, and therefore the data subject’s interest in obtaining information shall not take precedence. (5) It is not necessary to provide reasons for refusing to provide information if stating the actual and legal grounds for refusal would threaten the purpose of refusing to provide the information. In this case, data subjects shall be informed of the possibility of contacting the Federal Commissioner for Data Protection and Freedom of Information. (6) If no information is provided to the data subject, at the data subject’s request this information shall be supplied to the Federal Commissioner for Data Protection and Freedom of Information unless the relevant supreme federal authority finds in the individual case that doing so would endanger the security of the Federation or a Land. The information provided by the Federal Commissioner to the data subject may not provide any indication of the knowledge available to the controller without its consent. (7) Information shall be provided free of charge.” Section 19a – Notification “(1) If data are collected without the data subject’s knowledge, he or she shall be notified of such recording, the identity of the controller and the purposes of collection, processing or use. The data subject shall also be notified of recipients or categories of recipients except where he or she must expect transfer to such recipients. If a transfer is planned, notification shall be provided no later than the first transfer. (2) Notification shall not be required if 1. the data subject already has this information, 2. notifying the data subject would involve a disproportionate effort, or 3. recording or transferring of personal data is expressly laid down by law. The controller shall specify in writing the conditions under which notification shall not be provided in accordance with nos. 2 or 3. (3) Section 19(2) to (4) shall apply accordingly.” Section 21 – Appeals to the Federal Commissioner for Data Protection and Freedom of Information “Anyone who believes that his or her rights have been infringed through the collection, processing or use of his or her personal data by public bodies of the Federation may appeal to the Federal Commissioner for Data Protection and Freedom of Information. This shall apply to the collection, processing or use of personal data by federal courts only where they are active in administrative matters.” Section 24 – Monitoring by the Federal Commissioner for Data Protection and Freedom of Information “(1) The Federal Commissioner for Data Protection and Freedom of Information shall monitor compliance by the public bodies of the Federation with the provisions of this Act and other data protection provisions. (2) Monitoring by the Federal Commissioner shall also extend to 1. personal data obtained by public bodies of the Federation concerning the contents of and specific circumstances relating to postal communications and telecommunications, and 2. personal data subject to professional or special official secrecy, especially tax secrecy under Article 30 of the German Fiscal Code. ...” 45. Similar provisions existed in Länder. In addition the Länder have their own data protection commissioner monitoring the compliance of Länder authorities with the respective data protection acts. III. EUROPEAN UNION LAW AND PRACTICE A. Charter of Fundamental Rights of the European Union 46. Articles 7 and 8 of the Charter provide as follows: Article 7 – Respect for private and family life “Everyone has the right to respect for his or her private and family life, home and communications.” Article 8 – Protection of personal data “1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which have been collected concerning him or her, and the right to have them rectified. 3. Compliance with these rules shall be subject to control by an independent authority.” B. EU secondary legislation relating to data protection 47. The relevant recitals of the Privacy and Electronic Communications Directive (Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector) state as follows: “(2) This Directive seeks to respect the fundamental rights and observes the principles recognised in particular by the Charter of fundamental rights of the European Union. In particular, this Directive seeks to ensure full respect for the rights set out in Articles 7 and 8 of that Charter. ... (11) Like Directive 95/46/EC, this Directive does not address issues of protection of fundamental rights and freedoms related to activities which are not governed by Community law. Therefore it does not alter the existing balance between the individual’s right to privacy and the possibility for Member States to take the measures referred to in Article 15(1) of this Directive, necessary for the protection of public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the enforcement of criminal law. Consequently, this Directive does not affect the ability of Member States to carry out lawful interception of electronic communications, or take other measures, if necessary for any of these purposes and in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the rulings of the European Court of Human Rights. Such measures must be appropriate, strictly proportionate to the intended purpose and necessary within a democratic society and should be subject to adequate safeguards in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms.” 48. The Directive further provides, in so far as relevant: Article 1 – Scope and aim “1. This Directive harmonises the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community. 2. The provisions of this Directive particularise and complement Directive 95/46/EC for the purposes mentioned in paragraph 1. Moreover, they provide for protection of the legitimate interests of subscribers who are legal persons. 3. This Directive shall not apply to activities which fall outside the scope of the Treaty establishing the European Community, such as those covered by Titles V and VI of the Treaty on European Union, and in any case to activities concerning public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the activities of the State in areas of criminal law.” Article 15 – Application of certain provisions of Directive 95/46/EC “1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union.” 49. On 15 March 2006 the Data Retention Directive (Directive 2006/24/EC of the European Parliament and of the Council on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC) was adopted. It provided, in so far as relevant: Article 1 – Subject matter and scope “1. This Directive aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. 2. This Directive shall apply to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It shall not apply to the content of electronic communications, including information consulted using an electronic communications network.” Article 3 § 1 – Obligation to retain data “By way of derogation from Articles 5, 6 and 9 of Directive 2002/58/EC, Member States shall adopt measures to ensure that the data specified in Article 5 of this Directive are retained in accordance with the provisions thereof, to the extent that those data are generated or processed by providers of publicly available electronic communications services or of a public communications network within their jurisdiction in the process of supplying the communications services concerned.” 50. In essence, the Directive established an obligation for providers of publicly available electronic communication services or of public communications networks to retain all traffic and location data for periods of from six months to two years. It aimed at ensuring that the data were available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each member State in its national law. The retention obligation entailed, inter alia, data necessary to trace and identify the source and destination of a communication, meaning the telephone number and the name and address of the subscriber or registered user (Article 5 § 1 (a) and (b)). C. Relevant case-law of the Court of Justice of the European Union 51. In a judgment adopted on 8 April 2014 in Digital Rights Ireland and Seitlinger and Others (joined cases C-293/12 and C-594/12, EU:C:2014:238) the Court of Justice of the European Union (CJEU) declared the Data Retention Directive invalid (see paragraphs 49-50 above). 52. The CJEU further developed its Digital Rights case-law in Tele2 Sverige and Tom Watson and Others (judgment of 21 December 2016, joined cases C-203/15 and C-698/15, EU:C:2016:970). The court stated, inter alia (references to further CJEU judgments have been omitted in the quote below): “103. ... while the effectiveness of the fight against serious crime, in particular organised crime and terrorism, may depend to a great extent on the use of modern investigation techniques, such an objective of general interest, however fundamental it may be, cannot in itself justify that national legislation providing for the general and indiscriminate retention of all traffic and location data should be considered to be necessary for the purposes of that fight. 104. In that regard, it must be observed, first, that the effect of such legislation, in the light of its characteristic features as described in paragraph 97 of the present judgment, is that the retention of traffic and location data is the rule, whereas the system put in place by Directive 2002/58 requires the retention of data to be the exception. 105. Second, national legislation such as that at issue in the main proceedings, which covers, in a generalised manner, all subscribers and registered users and all means of electronic communication as well as all traffic data, provides for no differentiation, limitation or exception according to the objective pursued. It is comprehensive in that it affects all persons using electronic communication services, even though those persons are not, even indirectly, in a situation that is liable to give rise to criminal proceedings. It therefore applies even to persons for whom there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious criminal offences. Further, it does not provide for any exception, and consequently it applies even to persons whose communications are subject, according to rules of national law, to the obligation of professional secrecy. 106. Such legislation does not require there to be any relationship between the data which must be retained and a threat to public security. In particular, it is not restricted to retention in relation to (i) data pertaining to a particular time period and/or geographical area and/or a group of persons likely to be involved, in one way or another, in a serious crime, or (ii) persons who could, for other reasons, contribute, through their data being retained, to fighting crime. 107. National legislation such as that at issue in the main proceedings therefore exceeds the limits of what is strictly necessary and cannot be considered to be justified, within a democratic society, as required by Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter. 108. However, Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, does not prevent a Member State from adopting legislation permitting, as a preventive measure, the targeted retention of traffic and location data, for the purpose of fighting serious crime, provided that the retention of data is limited, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, to what is strictly necessary. 109. In order to satisfy the requirements set out in the preceding paragraph of the present judgment, that national legislation must, first, lay down clear and precise rules governing the scope and application of such a data retention measure and imposing minimum safeguards, so that the persons whose data has been retained have sufficient guarantees of the effective protection of their personal data against the risk of misuse. That legislation must, in particular, indicate in what circumstances and under which conditions a data retention measure may, as a preventive measure, be adopted, thereby ensuring that such a measure is limited to what is strictly necessary. 110. Second, as regards the substantive conditions which must be satisfied by national legislation that authorises, in the context of fighting crime, the retention, as a preventive measure, of traffic and location data, if it is to be ensured that data retention is limited to what is strictly necessary, it must be observed that, while those conditions may vary according to the nature of the measures taken for the purposes of prevention, investigation, detection and prosecution of serious crime, the retention of data must continue nonetheless to meet objective criteria, that establish a connection between the data to be retained and the objective pursued. In particular, such conditions must be shown to be such as actually to circumscribe, in practice, the extent of that measure and, thus, the public affected. 111. As regard the setting of limits on such a measure with respect to the public and the situations that may potentially be affected, the national legislation must be based on objective evidence which makes it possible to identify a public whose data is likely to reveal a link, at least an indirect one, with serious criminal offences, and to contribute in one way or another to fighting serious crime or to preventing a serious risk to public security.” 53. Subsequent to the latter judgment, national courts in several EU member States have sought preliminary rulings from the CJEU seeking to clarify the scope and effects of the Tele2 Sverige judgment. Two of those cases are still pending (see Privacy International, C-623/17, and Ordre des barreaux francophones et germanophone, Académie Fiscale ASBL, UA, Liga voor Mensenrechten ASBL, Ligue des Droits de l’Homme ASBL, VZ, WY, XX, C ‑ 520/18). 54. In a third case, Ministerio Fiscal (judgment of 2 October 2018, C ‑ 207/16, EU:C:2018:788), the CJEU was asked whether Article 15 § 1 of the Data Retention Directive, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights, must be interpreted as meaning that public authorities’ access to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners of the SIM cards, entails interference with their fundamental rights, enshrined in those Articles of the Charter, which is sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime and, if so, by reference to which criteria the seriousness of the offence at issue must be assessed. 55. In its judgment of 2 October 2018, the CJEU held as follows (references to further CJEU judgments have been omitted in the quote below): “51. As to the existence of an interference with those fundamental rights, it should be borne in mind ... that the access of public authorities to such data constitutes an interference with the fundamental right to respect for private life, enshrined in Article 7 of the Charter, even in the absence of circumstances which would allow that interference to be defined as ‘serious’, without it being relevant that the information in question relating to private life is sensitive or whether the persons concerned have been inconvenienced in any way. Such access also constitutes interference with the fundamental right to the protection of personal data guaranteed in Article 8 of the Charter, as it constitutes processing of personal data. ... 56. In accordance with the principle of proportionality, serious interference can be justified, in areas of prevention, investigation, detection and prosecution of criminal offences, only by the objective of fighting crime which must also be defined as ‘serious’. 57. By contrast, when the interference that such access entails is not serious, that access is capable of being justified by the objective of preventing, investigating, detecting and prosecuting ‘criminal offences’ generally. 58. It should therefore, first of all, be determined whether, in the present case, in the light of the facts of the case, the interference with fundamental rights enshrined in Articles 7 and 8 of the Charter that police access to the data in question in the main proceedings would entail must be regarded as ‘serious’. 59. In that regard, the sole purpose of the request at issue in the main proceedings, by which the police seeks, for the purposes of a criminal investigation, a court authorisation to access personal data retained by providers of electronic communications services, is to identify the owners of SIM cards activated over a period of 12 days with the IMEI code of the stolen mobile telephone. ... that request seeks access to only the telephone numbers corresponding to those SIM cards and to the data relating to the identity of the owners of those cards, such as their surnames, forenames and, if need be, addresses. By contrast, those data do not concern ... the communications carried out with the stolen mobile telephone or its location. 60. It is therefore apparent that the data concerned by the request for access at issue in the main proceedings only enables the SIM card or cards activated with the stolen mobile telephone to be linked, during a specific period, with the identity of the owners of those SIM cards. Without those data being cross-referenced with the data pertaining to the communications with those SIM cards and the location data, those data do not make it possible to ascertain the date, time, duration and recipients of the communications made with the SIM card or cards in question, nor the locations where those communications took place or the frequency of those communications with specific people during a given period. Those data do not therefore allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned. 61. In those circumstances, access to only the data referred to in the request at issue in the main proceedings cannot be defined as ‘serious’ interference with the fundamental rights of the persons whose data is concerned.” IV. INTERNATIONAL LAW AND PRACTICE 56. The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, recommended in his Report to the Human Rights Council on the use of encryption and anonymity to exercise the rights to freedom of opinion and expression in the digital age (A/HRC/29/32, 22 May 2015, § 60): “States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression. Blanket prohibitions fail to be necessary and proportionate. ... States should refrain from making the identification of users a condition for access to digital communications and online services and requiring SIM card registration for mobile-telephone users.” 57. The Council of Europe Convention of 1981 for the Protection of Individuals with Regard to Automatic Processing of Personal Data (“the Data Protection Convention”), which was ratified by all Council of Europe member States and came into force in respect of Germany on 1 October 1985, formulates a number of core principles for the collection and processing of personal data. The purpose of the Convention is, according to Article 1, to secure respect for every individual’s rights and fundamental freedoms, and in particular his or her right to privacy, with regard to the automatic processing of personal data relating to him or her. The Convention includes the following basic principles: Article 2 – Definitions “For the purposes of this Convention: a ’personal data’ means any information relating to an identified or identifiable individual (‘data subject’); b ’automated data file’ means any set of data undergoing automatic processing; c ’automatic processing’ includes the following operations if carried out in whole or in part by automated means: storage of data, carrying out of logical and/or arithmetical operations on those data, their alteration, erasure, retrieval or dissemination; ...” Article 5 – Quality of data “Personal data undergoing automatic processing shall be: a obtained and processed fairly and lawfully; b stored for specified and legitimate purposes and not used in a way incompatible with those purposes; c adequate, relevant and not excessive in relation to the purposes for which they are stored; d accurate and, where necessary, kept up to date; e preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.” Article 7 – Data security “Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.” Article 8 – Additional safeguards for the data subject “Any person shall be enabled: a to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file; b to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form; c to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this Convention; d to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this Article is not complied with.” Article 9 – Exceptions and restrictions “No exception to the provisions of Articles 5, 6 and 8 of this Convention shall be allowed except within the limits defined in this Article. Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of: a protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences; b protecting the data subject or the rights and freedoms of others. Restrictions on the exercise of the rights specified in Article 8, paragraphs b, c and d, may be provided by law with respect to automated personal data files used for statistics or for scientific research purposes when there is obviously no risk of an infringement of the privacy of the data subjects.” The Data Protection Convention is currently being updated to, inter alia, better address challenges resulting from the use of new information and communication technologies. A Protocol amending the Data Protection Convention was opened for signature by the Contracting States to that Convention on 10 October 2018 and was signed by Germany on the same day. V. COMPARATIVE LAW 58. From a comparative-law report on thirty-four Council of Europe member States’ practices as to the retention of subscriber information of prepaid SIM card customers, it appears that fifteen States require telecommunications providers to store such data and that none of the States surveyed currently permits its authorities to maintain their own database of personal data of telecommunications subscribers. Moreover, there is variation as regards the length of time such data may be stored, the purposes for which they may be used, and the procedural requirements that must be met in order to access them. In particular, a majority of the States prescribe in law a list of specific authorities who are permitted to access subscriber information and limit the acceptable purposes to the investigation of crimes or for the prevention of threats to public order. Furthermore, in most States, procedural requirements for accessing stored subscriber information include an order by a court or a public prosecutor, typically if the subscriber data are to be used mainly for criminal investigative purposes. Lastly, only a minority of States require that customers be notified where their personal data have been accessed. THE LAW ALLEGED VIOLATION OF ARTICLES 8 AND 10 OF THE CONVENTION 59. The applicants complained that, as users of prepaid mobile phone SIM cards, certain personal data had been stored by their respective telecommunications service providers owing to the legal obligation provided in section 111 of the Telecommunications Act. They relied on their right to respect for private life and correspondence as provided in Article 8 of the Convention and their freedom of expression as provided in Article 10 of the Convention which read, in so far as relevant to the present case, as follows: Article 8 “1. Everyone has the right to respect for his private ... life ... and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or ..., for the prevention of disorder or crime ...” Article 10 “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security ... or public safety, for the prevention of disorder or crime ...” A. Scope of the application and the Court’s assessment 1. The Convention rights to be assessed 60. At the outset the Court notes that the applicants relied on Article 8 (right to respect for private life and correspondence) and Article 10 (right to anonymous communication as an aspect of freedom of expression). However, it also observes that before the Court the applicants merely challenged the compatibility of section 111 of the Telecommunications Act with the Convention. They did not explicitly complain about sections 112 or 113 of that Act, which had also been the subject of their complaint before the Federal Constitutional Court, or about any further measures concerning surveillance or interception of telephone communications. This does not mean, however, that those other provisions of the Telecommunications Act will not prove relevant when assessing the proportionality of the interference complained of and how it operates in practice (see paragraphs 97 ‑ 101 below). 61. Section 111 of the Telecommunications Act only concerns the storage of subscriber data, namely the telephone number, name and address, date of birth, and date of the contract. This provision does not extend to traffic data, location data or data which reveal the content of communications. Moreover, the applicants have not alleged that their communications have been intercepted or that their telecommunications have been subjected to any other surveillance measure. The interference complained of relates to the storage of the data set described above and the potential for national authorities to access that data set in certain defined circumstances. Therefore, while the Court is mindful of the circumstances of the data storage at issue and its proximity to telephone communications and the right to correspondence, it considers that the key aspect of the applicants’ complaint is the storage of their personal data and not any particular interference with their correspondence or with their freedom of expression. 62. The Court is therefore not called upon in the present case to decide whether and to what extent Article 10 of the Convention may be considered to guarantee a right for users of telecommunications services to anonymity (see, regarding the interest of Internet users in not disclosing their identity, Delfi AS v. Estonia [GC], no. 64569/09, § 147, 16 June 2015) and how this right would have to be balanced against other imperatives (see, mutatis mutandis, K.U. v. Finland, no. 2872/02, § 49, 2 December 2008). 63. In sum, the Court finds it appropriate to examine the applicants’ complaints solely under the right to respect for private life as provided in Article 8 of the Convention. 2. Temporal scope of the assessment 64. The Court notes that the applicants’ subscriber data have been temporarily stored by the telecommunications provider since the registration of their SIM cards. It also notes that section 111 of the Telecommunications Act was amended in 2007 and 2016. It observes, however, that in its judgment of 24 January 2012, the Federal Constitutional Court examined the Telecommunications Act as in force on 1 January 2008 and that proceedings concerning the subsequent amendment to the Telecommunications Act of 2016 are still pending before the Federal Constitutional Court (see paragraphs 11 and 28 above). The Court will therefore examine the relevant provisions as in force on 1 January 2008. B. Admissibility 65. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 1. The parties’ submissions (a) The applicants 66. The applicants argued that the obligation to store their personal data under section 111 of the Telecommunications Act interfered with their right to privacy, as it had forced them to disclose their personal data, which had subsequently been stored. This interference was not justified, in particular since it was disproportionate and not necessary in a democratic society. Firstly, the provision was not a suitable instrument, as the identification process could easily be circumvented by submitting false names or using stolen, second-hand or foreign SIM cards. It was also not necessary as the identification of mobile-telephone users suspected of a criminal offence could easily be accomplished by other investigatory measures. Consequently, the amendment of section 111 of the Telecommunications Act had not led to a reduction in crime. 67. According to the applicants, the interference was very serious as it constituted mass pre ‑ emptive storage of personal data of everyone who used telecommunications. The provision did not include any prerequisites for storage, but was generally applicable to all mobile-telephone users. The vast majority of affected people were innocent and did not present any danger or risk for public safety or national security. In that regard the applicants submitted that, according to the Federal Network Agency, the number of queried data sets under the automated procedure of section 112 of the Telecommunications Act had risen from 26.62 million in 2008 to 34.83 million in 2015. Moreover, the provision also did not differentiate between “normal” communication and communication that was particularly protected by the Convention, such as between a lawyer and his or her client or a doctor and his or her patient. Furthermore, data storage increased the risk of misuse and data leaks and thereby the risk of identity fraud. (b) The Government 68. The Government conceded that section 111 of the Telecommunications Act had constituted an interference with the applicants’ right to private life. It had obliged their service providers to store their personal data. The Government emphasised that no so-called traffic data – meaning data originating in the course of a communication process – had been stored, only the subscriber information listed above (see paragraph 61 above). Moreover, section 111 had to be read in conjunction with sections 112 and 113 of the Telecommunications Act and the further limiting provisions regulating the access to the stored data, as the authorities retrieving subscriber data needed to have a statutory basis for doing so. 69. This limited interference had pursued the legitimate aims of public safety, prevention of disorder or crime and the protection of the rights and freedoms of others and had been a suitable instrument to do so, as it had provided security agencies with the possibility to correlate mobile-telephone numbers of prepaid SIM cards to specific individuals. This possibility would contribute to effective law enforcement and serve to avert danger. The possibility of circumventing the provision had been further restricted by the amendment of 2016 (see paragraph 28 above). 70. The provision at issue also complied with the requirements for protection of personal data as established by the Court in S. and Marper v. the United Kingdom ([GC], nos. 30562/04 and 30566/04, § 103, ECHR 2008). It limited the amount of data to that which was absolutely necessary for identification. The time-period for data storage was clearly defined and limited to a maximum term not exceeding the term necessitated by the purpose being pursued. Furthermore, sections 112 and 113 of the Telecommunications Act in conjunction with the specific provisions for retrieval constituted effective safeguards against abuse. 71. It had also to be taken into account that the margin of appreciation afforded to member States was relatively broad, not only because the German authorities had to strike a balance between various competing rights and obligations protected by the Convention (they referred to Evans v. the United Kingdom [GC], no. 6339/05, § 77, 10 April 2007), but also because there was no European consensus as regards the obligation to store subscriber data when acquiring prepaid mobile telephone SIM cards. In sum, the storage of a very minimal set of data, protected by several procedural safeguards, was proportionate in the crucial interests of public safety and prevention of disorder and crime. (c) The third-party interveners 72. The third-party interveners, Privacy International and ARTICLE 19, outlined the significance of anonymity and anonymous speech for a democratic society and citizens’ rights of privacy and freedom of expression. This fundamental role had increasingly been recognised by national courts and international organisations, such as the United Nations and the Council of Europe. In addition the Court itself had confirmed the importance of anonymity in Delfi AS v. Estonia (cited above, §§ 147-48). Moreover, they pointed to the fact that there had been a growing recognition by courts in Europe that blanket, indiscriminate retention of identifying information and traffic data had been disproportionate to the undoubtedly important fight against serious crime. This had also been confirmed by the CJEU in its judgment in Digital Rights Ireland and Seitlinger and Others (see paragraph 51 above). 2. The Court’s assessment (a) General principles 73. The Court reiterates that private life is a broad term not susceptible to exhaustive definition. Article 8 protects, inter alia, the right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see Uzun v. Germany, no. 35623/05, § 43, 2 September 2010). 74. In the context of personal data, the Court has pointed out that the term “private life” must not be interpreted restrictively. It has found that the broad interpretation corresponds with that of the Data Protection Convention, the purpose of which is “to secure in the territory of each Party for every individual ... respect for his rights und fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him” (Article 1), such personal data being defined as “any information relating to an identified or identifiable individual” (Article 2) (see Amann v. Switzerland [GC], no. 27798/95, § 65, 16 February 2000). 75. It further follows from the Court’s well-established case-law that where there has been a compilation of data on a particular individual, the processing or use of personal data or publication of the material concerned in a manner or degree beyond that normally foreseeable, private-life considerations arise. Article 8 of the Convention thus provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data which, albeit neutral, are collected, processed and disseminated collectively and in such a form or manner that their Article 8 rights may be engaged (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, §§ 136-37, 27 June 2017, with further references). 76. The Court notes that while it has already examined a wide range of interferences with the right to private life under Article 8 of the Convention as a result of the storage, processing and use of personal data – for example, the use of surveillance via GPS in criminal investigations (see Uzun, cited above, and Ben Faiza v. France, no. 31446/12, 8 February 2018), the disclosure of identifying information to law-enforcement authorities by telecommunication providers (see K.U. v. Finland, cited above, and Benedik v. Slovenia, no. 62357/14, 24 April 2018), the indefinite retention of fingerprints, cell samples and DNA profiles after criminal proceedings (see S. and Marper, cited above), the so-called metering or collection of usage or traffic data (see Malone v. the United Kingdom, 2 August 1984, Series A no. 82, and Copland v. the United Kingdom, no. 62617/00, 3 April 2007) or the inclusion of sex offenders in an automated national judicial database subsequent to a conviction for rape (see B.B. v. France, no. 5335/06, 17 December 2009; Gardel v. France, no. 16428/05, ECHR 2009; and M.B. v. France, no. 22115/06, 17 December 2009) – none of the previous cases have concerned the storage of a data set like that in the present case. 77. An obligation, similar to that in section 111 of the Telecommunications Act, to create databases storing information (first name, patronymic and family name, home address and passport number for natural persons) about all subscribers and providing law-enforcement agencies remote access to the databases was admittedly part of the system of secret surveillance which the Court considered in the case of Roman Zakharov v. Russia ([GC], no. 47143/06, §§ 132-33 and 269-70, ECHR 2015). However, given the further possibilities available to the Russian authorities to intercept telecommunications, the mere obligation to store subscriber information and provide remote access to this database was not decisive for the Court in finding a violation of Article 8 in that case. 78. In its judgment in S. and Marper (cited above, § 103) the Court held as follows: “The protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention. The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article .... The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored (see Article 5 of the Data Protection Convention ... [in paragraph 47 above]). The domestic law must also afford adequate guarantees that retained personal data were efficiently protected from misuse and abuse (see notably Article 7 of the Data Protection Convention [in paragraph 47 above]) ....” 79. The Court has acknowledged that, when balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant’s right to respect for his or her private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it (see Roman Zakharov, cited above, § 232; Liblik and Others v. Estonia, nos. 173/15 and 5 others, § 131, 28 May 2019; and Szabó and Vissy v. Hungary, no. 37138/14, § 57, 12 January 2016). 80. The breadth of the margin of appreciation varies and depends on a number of factors, including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider (see S. and Marper, cited above, § 102). (b) Application of the above principles to the present case (i) Existence of an interference 81. It is not contested by the parties that the obligation for service providers to store personal data in accordance with section 111 of the Telecommunications Act interfered with the applicants’ right to respect for their private life, since their personal data were stored. In this connection the Court reiterates that the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 of the Convention (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116). It furthermore takes note of the Federal Constitutional Court’s finding that the extent of protection of the right to informational self-determination under domestic law was not restricted to information which by its very nature was sensitive and that, in view of the possibilities of processing and combining, there is no item of personal data which is in itself – that is, regardless of the context of its use – insignificant (see paragraph 122 of the Federal Constitutional Court’s judgment cited in paragraph 14 above). (ii) Justification for the interference 82. The Court reiterates that an interference with an applicant’s right to respect for his or her private life breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is, in addition, “necessary in a democratic society” to achieve those aims (see M.N. and Others v. San Marino, no. 28005/12, § 71, 7 July 2015, with further references). (α) “In accordance with the law” 83. According to the Court’s established case ‑ law, the requirement that an interference be “in accordance with the law” does not only mean that the measure in question should have some basis in domestic law, but also that the law should be accessible to the person concerned and foreseeable as to its effects. In the context of, inter alia, storage of personal information it is essential to have clear, detailed rules governing minimum safeguards concerning among other things duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction (see S. and Marper, cited above, § 99, with further references) 84. The Court finds that the storage of the applicants’ personal data, when acquiring mobile telephone SIM cards, took place on the basis of section 111 of the Telecommunications Act, which was, in so far as the amount of stored data is concerned, sufficiently clear and foreseeable. In addition, the duration of the storage was clearly regulated and the technical side of the storage was, at least after the issuance of the respective regulation and technical directive, clearly laid out. 85. In so far as safeguards, access of third parties and further use of the stored data are concerned, section 111 of the Telecommunications Act has to be read in conjunction with its sections 112 and 113 and, according to the “double door” analogy used by the Federal Constitutional Court (see paragraph 123 of the Federal Constitutional Court’s judgment cited in paragraph 14 above), in conjunction with the relevant legal basis for individual information requests. The Court considers, however, that the question of foreseeability and whether sufficient detail is contained in these provisions are in the present case closely related to the broader issues of whether the interference was necessary in a democratic society and proportionate. It will therefore assess them further when it comes to those issues (see paragraphs 88-110 below). (β) Legitimate aim 86. Having regard to the context of the data storage at issue and in particular to the purposes of information requests and the authorities entitled to make them under sections 112 and 113 of the Telecommunications Act, the Court accepts the Government’s argument that the interference pursued the legitimate aims of public safety, prevention of disorder or crime and the protection of the rights and freedoms of others. 87. In this connection the Court notes the Federal Constitutional Court’s explanation in its judgment that access to the information stored is for “the purpose of warding off dangers, prosecuting criminal offences or regulatory offences and performing intelligence duties” (see paragraph 176 of the Federal Constitutional Court’s judgment cited in paragraph 21 above). These purposes are further emphasised in the Telecommunications Act, which states that information requests are permissible in so far as they are necessary to prosecute criminal and regulatory offences, to avert danger and to perform intelligence tasks (see paragraph 31 above). (γ) “Necessary in a democratic society” 88. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and if it is proportionate to the legitimate aim pursued. The Court finds that the fight against crime, and in particular against organised crime and terrorism, which is one of the challenges faced by today’s European societies, upholding public safety and the protection of citizens constitute “pressing social needs” (compare, mutatis mutandis, Szabó and Vissy, cited above, § 68, and Ramda v. France, no. 78477/11, § 96, 19 December 2017). It also recognises that modern means of telecommunications and changes in communication behaviour require that investigative tools for law enforcement and national security agencies be adapted (see S. and Marper, cited above, § 105). 89. The Court observes that the Government argued that the possibility of correlating mobile-telephone numbers of prepaid SIM cards to specific individuals was necessary for effective law enforcement and to avert danger. The applicants, however, contested the effectiveness of section 111 of the Telecommunications Act, since there was no empirical evidence that mandatory registration had led to a reduction in crime. Moreover, they argued that the identification process could easily be circumvented by submitting false names or using stolen, second-hand or foreign SIM cards. 90. The Court acknowledges that pre-registration of mobile-telephone subscribers strongly simplifies and accelerates investigation by law ‑ enforcement agencies and can thereby contribute to effective law enforcement and prevention of disorder or crime. Moreover, it considers that the existence of possibilities of circumventing legal obligations cannot be a reason to call into question the overall utility and effectiveness of a legal provision. Lastly, the Court reiterates that in a national security context, national authorities enjoy a certain margin of appreciation when choosing the means for achieving a legitimate aim and notes that according to the comparative-law report, there is no consensus between the member States as regards the retention of subscriber information of prepaid SIM card customers (see paragraph 58 above). Having regard to that margin of appreciation, the Court accepts that the obligation to store subscriber information under section 111 of the Telecommunications Act was, in general, a suitable response to changes in communication behaviour and in the means of telecommunications. 91. The question, however, remains whether the interference was proportionate and struck a fair balance between the competing public and private interests. 92. At the outset the Court has to establish the level of interference with the applicants’ right to private life. In that regard the Court agrees with the Federal Constitutional Court (see paragraphs 138-39 of the Federal Constitutional Court’s judgment cited in paragraph 15 above) that only a limited data set was stored. These data did not include any highly personal information or allow the creation of personality profiles or the tracking of the movements of mobile-telephone subscribers. Moreover, no data concerning individual communication events were stored. The level of interference therefore has to be clearly distinguished from the Court’s previous cases that concerned, for example, “metering” (see Malone and Copland, both cited above), geolocation (see Uzun and Ben Faiza, both cited above), or the storage of health or other sensitive data (see, for example, S. and Marper, cited above, and M.M. v. the United Kingdom, no. 24029/07, 13 November 2012). Moreover, the case has to be distinguished from cases in which the registration in a particular database led to frequent checks or further collection of private information (see Dimitrov-Kazakov v. Bulgaria, no. 11379/03, 10 February 2011, and Shimovolos v. Russia, no. 30194/09, 21 June 2011). 93. Lastly, in so far as the applicants argued that the interference was severe, because section 111 of the Telecommunications Act created a register of all users of mobile SIM cards, and in that sense was comparable to the data retention at issue in Digital Rights Ireland and Seitlinger and Others, as well as Tele2 Sverige and Tom Watson and Others (see paragraphs 51-52 above), the Court notes that the Directive at issue in those cases applied to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. 94. Indeed, the data at issue in the present case bear greater resemblance to those at issue in a different preliminary reference, Ministerio fiscal (see paragraph 54 above). As the CJEU stated in that case, the data in question “do not make it possible to ascertain the date, time, duration and recipients of the communications made with the SIM card or cards in question, nor the locations where those communications took place or the frequency of those communications with specific people during a given period. Those data do not therefore allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned”. The CJEU therefore concluded that the access to the data at issue could not be defined as a serious interference with the fundamental rights of the persons whose data were concerned (see paragraph 55 above). 95. In sum, the Court concludes that the interference was, while not trivial, of a rather limited nature. 96. As regards safeguards, the Court observes that the applicants have not alleged that the data storage at issue was subject to any technical insecurities. Moreover, the duration of the storage is limited to the expiry of the calendar year following the year in which the contractual relationship ended (section 111(4) of the Telecommunications Act – see paragraph 27 above). This duration of storage does not appear inappropriate, given that investigations into criminal offences may take some time and extend beyond the end of the contractual relationship. Moreover, the stored data appear to be limited to the information necessary to clearly identify the relevant subscriber. 97. The Court further observes that even though the applicants have only complained about the storage of their personal information under section 111 of the Telecommunications Act, both parties accepted that the data storage had to be assessed in conjunction with sections 112 and 113 of that Act. The Government argued that these sections, in conjunction with other specific provisions for data retrieval, limited access to and use of the data and constituted effective safeguards against abuse. The applicants, however, submitted that each further investigative measure into a person’s conduct – connected to mobile communication – had been based on the information stored under section 111 of the Telecommunications Act and that therefore the possibilities of subsequent use of their personal data had to be taken into account when assessing the proportionality of the provision in relation to data storage. The Court agrees with the parties that, in the present case, it cannot consider the proportionality of the interference without closely assessing the future possible access to and use of the data stored. Therefore, it finds it of relevance to consider the legal basis for information requests and the safeguards available (see, mutatis mutandis, S. and Marper, cited above, §§ 67 and 103, with further references). 98. Regarding section 112 of the Telecommunications Act, the Court agrees with the Federal Constitutional Court (see paragraph 156 of the Federal Constitutional Court’s judgment cited in paragraph 18 above) that this provision has very much simplified data retrieval for the authorities. The centralised and automated procedure permits a form of access which largely removes practical difficulties of data collection and makes the data available to the authorities at all times without delay. However, the fact that the authorities which can request access are specifically listed in section 112 of the Telecommunications Act constitutes a limiting factor. Even though the list appears broad, all authorities mentioned therein are concerned with law enforcement or the protection of national security. 99. As regards section 113 of the Telecommunications Act, the Court first notes that the information retrieval is not simplified to the same extent as under section 112, since the authorities have to submit a written request for the information sought. A further difference between sections 112 and 113 of the Telecommunications Act is that the authorities entitled to request access pursuant to the latter provision are identified with reference to the tasks they perform but are not explicitly enumerated. While the Court considers this description by task less specific and more open to interpretation, the wording of the provision is nonetheless detailed enough to clearly foresee which authorities are empowered to request information. In that regard the Court also notes that the Federal Constitutional Court concluded that the limited tasks of the intelligence services justified their wide-ranging legal powers to request information on a pre-emptive basis (see paragraph 177 of the Federal Constitutional Court’s judgment cited in paragraph 21 above). 100. Concerning both provisions, the Court observes that the stored data are further protected against excessive or improper information requests by the fact that the requesting authority requires an additional legal basis to retrieve the data. As explained by the Federal Constitutional Court through its “double door” analogy (see paragraph 123 of the Federal Constitutional Court’s judgment cited in paragraph 14 above), sections 112 and 113 of the Telecommunications Act only allow the Federal Network Agency or the respective service provider to release the data. However, a further legal provision is required to allow the specified authorities to request the information. Moreover, the retrieval is limited to necessary data and this necessity requirement is safeguarded by a general obligation for the respective authorities retrieving the information to erase, without undue delay, any data they do not need. The Federal Constitutional Court pointed out that the requirement of “necessity” meant in the context of the prosecution of offences that there had to be at least an initial suspicion (see paragraph 177 of the Federal Constitutional Court’s judgment cited in paragraph 21 above). The Court accepts that there are sufficient limitations on the power to request information and that the requirement of “necessity” is not only inherent in the specific legal provisions that are the subject of this complaint but also to German and European data protection law. 101. In view of these elements, the Court can accept the Federal Constitutional Court’s conclusion that the thresholds provided in section 113 of the Telecommunications Act were still acceptable in the light of constitutional law, taking into account also that the obligation to submit a written request for information was likely to encourage the authority to obtain the information only where it was sufficiently needed (see paragraph 178 of the Federal Constitutional Court’s judgment cited in paragraph 21 above). In this connection the Court also notes that, in practice, manual retrievals did indeed seem to have been made in a limited number of cases compared to the automated requests under section 112 of the Telecommunications Act (see paragraph 13 above). 102. Lastly, the Court will consider the available possibilities of review and supervision of information requests under sections 112 and 113 of the Telecommunications Act. In Klass and Others v. Germany (6 September 1978, § 55, Series A no. 28) the Court held that a review of interferences with the right to respect for private life under Article 8 of the Convention – in that case interferences which took the form of secret surveillance measures – might come into play at three different stages: when the interference was first ordered, while it was being carried out, or after it had been terminated. In cases where the review was effected without the individual’s knowledge during the first two stages, it was essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding the individual’s rights. On a more general note the Court stated (ibid.): “... the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded. One of the fundamental principles of a democratic society is the rule of law, which is expressly referred to in the Preamble to the Convention ... The rule of law implies, inter alia, that an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.” 103. It subsequently relied on these principles, in particular the possibility of effective control and review, concerning different interferences with the right to respect for private life under Article 8 of the Convention (see, for example: storing of sensitive personal data in security files, Rotaru v. Romania [GC], no. 28341/95, § 59, ECHR 2000 ‑ V; seizure of bank documents, M.N. and Others, cited above, §§ 73 and 78; decision to override lawyer’s privilege against disclosure of her bank statements in criminal proceedings, Brito Ferrinho Bexiga Villa-Nova v. Portugal, no. 69436/10, § 55, 1 December 2015; telephone tapping, Lambert v. France, 24 August 1998, § 31, Reports of Judgments and Decisions 1998 ‑ V; a system of secret surveillance of mobile-phone communications, Roman Zakharov, cited above, § 233; and strategic monitoring of communication, Weber and Saravia v. Germany (dec.), no. 54934/00, § 117, ECHR 2006-XI). The Court observes, however, that all these cases concerned individualised and more serious and intrusive interferences with the right to respect for private life that cannot be compared to the question of access to data in the present case. In sum, it considers that the level of review and supervision has to be considered an important, but not decisive, element in the proportionality assessment of the collection and storage of such a limited data set. 104. Turning to the facts of the present case, the Court notes that in principle, subsection 2 of section 113 of the Telecommunications Act clarifies that the responsibility for the legality of the information request lies with the retrieving agency and that the telecommunications providers have no competence to review the admissibility of any request, as long as the information is requested in written form and a legal basis is referred to. Under section 112 of the Telecommunications Act, however, the Federal Network Agency is competent to examine the admissibility of the transmission when there is a special reason to do so. 105. In addition, each retrieval and the relevant information regarding the retrieval (time, data used in the process, the data retrieved, information clearly identifying the person retrieving the data, requesting authority, its reference number, information clearly identifying the person requesting the data) are recorded for the purpose of data protection supervision. This supervision is conducted by the independent Federal and Länder data protection authorities. The latter are not only competent to monitor compliance with data protection regulations of all authorities involved but they can also be appealed to by anyone who believes that his or her rights have been infringed through the collection, processing or use of his or her personal data by public bodies. 106. Lastly, the Court notes that the Federal Constitutional Court held that legal redress against information retrieval could be sought under general rules (see paragraph 186 of the Federal Constitutional Court’s judgment cited in paragraph 22 above) – in particular, together with legal redress proceedings against the final decisions of the authorities. 107. The Court considers that the possibility of supervision by the competent data protection authorities ensures the availability of a review by an independent authority. Moreover, since anyone who believes that his or her rights have been infringed can lodge an appeal, the lack of notification and confidentiality of the retrieval procedure does not raise an issue under the Convention. 108. Lastly, the Court acknowledges that – as there is no consensus among the member States concerning collection and storage of limited subscriber information (see paragraph 58 above) – member States have a certain margin of appreciation in choosing the means for achieving the legitimate aims of protecting national security and fighting crime, which Germany did not overstep in the present case. 109. Having regard to the above, the Court concludes that the storage of the applicants’ personal data by their respective service providers pursuant to section 111 of the Telecommunications Act (in its version examined by the Federal Constitutional Court – see paragraph 64 above) was proportionate and therefore “necessary in a democratic society”. 110. There has accordingly been no violation of Article 8 of the Convention. | The Court held that there had been no violation of Article 8 of the Convention, finding that, overall, Germany had not overstepped the limits of its discretion (“margin of appreciation”) it had in applying the law concerned, when choosing the means to achieve the legitimate aims of protecting national security and fighting crime, and that the storage of the applicants’ personal data had been proportionate and “necessary in a democratic society”. There had thus been no violation of the Convention. The Court considered in particular that collecting the applicants’ names and addresses as users of pre-paid SIM cards had amounted to a limited interference with their rights. It noted, however, that the law in question had additional safeguards while people could also turn to independent data supervision bodies to review authorities’ data requests and seek legal redress if necessary. |
99 | Taking of children into care | II. RELEVANT DOMESTIC AND COMPARATIVE LAW A. Domestic law 17. The Family Act ( Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows: Section 114 “(1) A court shall, in non-contentious proceedings, divest a person of his or her parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights. (2) A parent shall be considered to have abused or seriously infringed parental responsibility, obligations and rights if he or she: 1. has inflicted bodily or psychological harm on a child, including exposing that child to violence between adult members of the child’s family; 2. has sexually abused a child; 3. has exploited a child by forcing it to carry out excessive labour or labour that is not compatible with the child’s age; 4. has allowed a child to consume alcoholic drinks, drugs or other narcotics; 5. has incited a child to socially unacceptable behaviour; 6. has abandoned a child; 7. has not provided for a child with whom he or she lives for a period exceeding three months; 8. has not created, without good reason, adequate conditions for living with a child with whom he or she does not live; 9. has not provided for the basic needs of a child with whom he or she lives or has not complied with the measures imposed by the competent body aimed at the protection of the child’s wellbeing; 10. has abused the rights of a child in another manner. (3) The competent welfare centre shall institute proceedings for divesting a parent of parental rights as soon as it learns about the circumstances under paragraph 2 of this section. Such proceedings may also be instituted by the other parent, a child or a court of its own motion. (4) The parental rights shall be restored by a court decision when the reasons for divesting a parent of such rights cease to exist. (5) Proceedings under paragraph 4 of this section may be instituted by the parent who has been divested of his or her parental rights, or by a social welfare centre. (6) Where the proceedings for divesting one or both parents of parental rights have been instituted the competent welfare centre shall appoint a special guardian to the child concerned. ...” Section 119 “(1) Once adoption has been established parental custody [of the adopted child] shall cease. ...” Section 125 “(1) Adoption may be established if it is in the interest of the child. ...” Section 129 “(1) Adoption shall require the consent of both parents, except where otherwise provided. ...” Section 130 “Adoption shall not require the consent of a parent who is ... 1. divested of parental rights ...” Section 135 “(1) Adoption proceedings shall be carried out by the competent welfare centre of its own motion ...” Section 138 ... “(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.” Section 139 “If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.” Section 144 “(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease. ...” Section 267 “The court [conducting the proceedings] shall be particularly mindful that the rights and interests of children, persons suffering from mental ailments or persons who, for other reasons, are not able to care for themselves and protect their rights and interests, are adequately protected.” B. Participation in adoption proceedings for a parent divested of his/her parental rights in the law of other Council of Europe Member States 18. The comparative review as regards the extent to which a parent divested of his/her parental rights is entitled to participate in subsequent adoption proceedings of his/her child concerns forty-one member States of the Council of Europe, namely, Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Cyprus, Czech Republic, Finland, France, Former Yugoslav Republic of Macedonia, Georgia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom (England and Wales). 19. The forty-one member States under consideration give a varied picture of legislation in respect of the participation of parents divested of their parental rights in subsequent adoption proceedings. In twelve of them, namely, in Austria, Belgium, Cyprus, Finland, Germany, Liechtenstein, Malta, the Netherlands, Portugal, Romania, Switzerland and the United Kingdom the divestment of parental rights has no effect per se on the generally necessary consent of a birth parent to adoption. In most of these jurisdictions, however, the consent of the birth parent can be dispensed with on grounds very similar to the ones allowing for prior divestment proceedings. 20. In Cyprus, for instance, the court may dispense with the consent of the birth parent if the parent abandoned, neglected or abused the child or systematically failed to fulfil parental duties, especially regarding nutrition and maintenance. 21. In Germany, a substitution of the otherwise always necessary consent of a parent to an adoption is possible in cases similar to those where the deprivation of parental rights can be justified, including persistent and gross/particularly serious violation of parental duties or indifference to the child amounting to such a persistent and gross breach of duty. The consent of a parent may further be dispensed with where he/she is permanently incapable of caring for and bringing up the child as the result of a particularly serious psychological illness or a particularly serious mental or psychological handicap and the child’s development would as a result be seriously endangered. The person whose consent is to be substituted for that of the parent is party to the proceedings and is to be heard as such. 22. In Belgium denial of consent can be regarded as abusive by the court, thus justifying it being disregarded. Likewise, in Austria, consent can be replaced by a court order if there is no justification for refusal of consent. 23. In the Netherlands, the birth parents’ inherent right to veto an adoption may be disregarded if the child and the parent have hardly ever lived together as a family, if the parent has abused his or her authority over the child, if he or she has seriously neglected the care and upbringing of the child or if the parent has been irrevocably convicted of a criminal offence equally capable of justifying the divestment of parental rights. In case-law it has been established that a veto may also be disregarded if the parent has abused the right of veto. In this respect, the Supreme Court of the Netherlands held that a parent, in exercising the right of veto, is under the obligation to attach particular weight to the interests of the child. 24. In Malta deprivation of parental rights does not automatically lead to the loss of participatory rights in adoption proceedings for the birth parents, but the very fact of the deprivation may be brought up by the court to justify dispensing with their otherwise necessary consent to adoption. Furthermore, for reasons of abandonment, neglect or abuse of the child, and also if the court is satisfied that it is in the best interest of the child to be adopted, parental consent can be dispensed with. 25. In Portugal parents divested of their parental rights participate, as a rule, in the adoption proceedings and their consent to it is necessary, unless the child has already been placed in foster care further to a judicial decision or in a family or an institution for the purpose of adoption. After the placement of the child in a family selected for adoption or in an institution for the purpose of adoption no participation rights in the adoption proceedings remain for the birth parents. 26. In Romania the birth parents lose all participatory rights in adoption proceedings from the time when the child is placed under guardianship. In this case the guardian’s consent is needed for the adoption. 27. Depending on the structure of the relevant national legislation, either an otherwise necessary parental consent to an adoption can be dispensed with under certain circumstances or, from the outset, the participatory rights of the birth parents are overridden for reasons comparable to the ones justifying disposal of the consent. It is not necessarily obvious that the latter setting automatically awards the parent with fewer rights than the former. If a parent whose consent is dispensed with has no additional right to be heard in the adoption proceedings, for example, to explain the refusal of the consent, his/her position can be equivalent to that of a parent whose participation rights have been overridden in the first place. A double guarantee of this kind, namely a right to consent to an adoption backed by a separate right to be heard in the event that the former is dispensed with, is provided for in Germany. Similarly, in the Netherlands, exercise of the right to veto an adoption - afforded also to parents divested of their parental rights - inherently requires the active participation of the parent in the adoption proceedings. 28. In nine member States, namely Bulgaria, Former Yugoslav Republic of Macedonia, Ireland, Italy, Lithuania, Monaco, Norway, Poland and Sweden, a participation right is awarded to the parent divested of his/her parental rights from the outset in adoption proceedings, taking the form of a right to be informed of the adoption proceedings and a right to be heard or to give their opinion without that opinion having any binding effect upon the court. 29. In Italy the birth parents shall be informed of the initiation of pre-adoption proceedings by the court and they may become party to the proceedings as well as be represented by counsel. 30. In Bulgaria, Ireland, Lithuania and Sweden the birth parents are invited to express their views and opinions in the adoption proceedings even though these have no binding effect on the court. 31. In Former Yugoslav Republic of Macedonia and Poland the birth parents participate in the proceedings as third parties or interested parties. 32. In twenty of the member States under consideration here, namely in Albania, Armenia, Bosnia and Herzegovina, Czech Republic, Estonia, France, Georgia, Greece, Hungary, Latvia, Luxembourg, Moldova, Montenegro, Russia, Serbia, Slovakia, Slovenia, Spain, Turkey and Ukraine, a parent divested of parental rights is not afforded a role of any kind in the following adoption proceedings. 33. In most of these member States the right to participate is expressly ruled out. In Albania and the Czech Republic, however, no regulations exist suggesting a role in adoption proceedings for parents divested of their parental rights and whose consent is thus not needed for the adoption. There is, however, also no express prohibition in this regard. C. International law 34. The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant, reads as follows: Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.” “2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.” Article 21 “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ...” 35. On 15 January 2001 the Council of Europe’s Committee of Experts on Family Law adopted a White Paper on principles concerning the establishment and legal consequences of parentage. The relevant part reads as follows: Principle 15: “1. An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn: the consent of the mother the consent of the father. States may also require the consent of the child considered by the internal law as having sufficient understanding. 2. The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead. 3. The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.” 36. The European Convention on the Adoption of Children of 2008 (revised), elaborated within the Council of Europe, entered into force on 1 September 2011, has been ratified by seven States and signed by fifteen, but not Croatia. It mainly confirmed the principles of the 1967 Convention of the same name. Article 5 of the 2008 Convention provides as follows: Article 5 – Consents to an adoption “1 Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: a the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place; b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years; c the consent of the spouse or registered partner of the adopter. 2 The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing. 3 The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with. 4 If the father or mother is not a holder of parental responsibility in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent. 5 A mother’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child. 6 For the purposes of this Convention “father” and “mother” mean the persons who according to law are the parents of the child.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 37. The first applicant complained that hers and her son’s right to respect for family life had been infringed in that she could not effectively participate in the proceedings concerning her parental rights, and that her son was put up for adoption without her knowledge, consent or participation in the adoption proceedings. She relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The parties’ arguments 38. The Government argued that the first applicant had no locus standi as regards L. and that the only persons who could have brought any complaints on his behalf were his adoptive parents, since his adoption had become final on 15 October 2010. 39. They further contended that Article 8 was not applicable to the present case, arguing that the relationship between the first applicant and her son had deteriorated to such an extent that it no longer represented a family life and that their blood relation alone was not enough to maintain it. They stressed that the child had been placed in a foster family from its birth, that the first applicant had ceased to care for the child, and that the child had been adopted by third persons. 40. The Government also maintained that the first applicant had failed to exhaust all available domestic remedies since she had not lodged an appeal against the decision of the K. Municipal Court of 10 May 2010 depriving her of her parental rights in respect of L. and subsequently a constitutional complaint in the event that her appeal was unsuccessful. 41. They finally submitted that the application had been lodged outside the six-month time-limit as the final domestic decision depriving the first applicant of her parental rights had been adopted on 10 May 2010 and served on her on 17 May 2010. 42. As regards her right to represent L., the first applicant replied that even though she had been divested of her parental rights, she nevertheless had the right to bring complaints on behalf of her biological child in order to protect his interests. 43. The first applicant contested the Government’s arguments as to the applicability of Article 8 and asserted that removing a child from its parent’s care, divesting the parent of parental rights and putting a child up for adoption were all extreme measures, which in her case had had an enormous effect on her family life. 44. As regards the exhaustion of domestic remedies, the first applicant submitted that she had not lodged an appeal against the decision of 10 May 2010 because she was not able to understand the legal issues and the meaning of the court proceedings. Since she had been unrepresented in those proceedings, she had not been able to use any remedies. 45. As regards the compliance with the six-month rule, the first applicant replied that she could not understand the meaning of the proceedings for divesting her of her parental rights and the effect of that decision and that only by chance had she been made aware of the true meaning of the decisions adopted. She had then applied for legal aid and used all the legal paths that had still been at her disposal, such as a request that her parental rights in respect of L. be restored. The final decision in those proceedings was adopted on 28 January 2011. 2. The Court’s assessment (a) Standing of the first applicant to act on behalf of L. 46. The Court observes that following the decision of 10 May 2010, depriving the first applicant of her parental rights, the legal parental ties between the first applicant and her son L. were severed. L. was subsequently put up for adoption and the adoption was finalised on 15 October 2010. This factor is not, however, decisive of whether the first applicant is able to introduce complaints on behalf of L. The conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, while those purposes may sometimes be analogous, they need not always be so (see, mutatis mutandis, Norris v. Ireland, 26 October 1988, § 31, Series A no. 142). 47. The Court would draw attention to the principle that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive, be interpreted and applied so as to render its safeguards both practical and effective (see amongst other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 70-72, Series A no. 310). The position of children under Article 34 calls for careful consideration, as children must generally rely on other persons to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense ( P.C. and S. v. the United Kingdom (dec.), no. 56547/00, 11 November 2001). The Court considers that a restrictive or technical approach in this area is to be avoided. 48. In the present case the Court notes that L. was adopted and that his legal representatives under the national law are now his adoptive parents. Therefore, in respect of any issues concerning the facts occurred after the adoption had become final, his only representatives under national law would be his adoptive parents. However, all issues relevant for his right to respect for his private and family life which occurred in the proceedings concerning the severing of his ties with his biological mother before his adoption, should be examined by the Court (see, mutatis mutandis, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000-VIII, § 138; Moretti and Benedetti v. Italy, no. 16318/07, § 32, 27 April 2010; Z. v. Slovenia, no. 43155/05, § 114, 30 November 2010; Diamante and Pelliccioni v. San Marino, no. 32250/08, § 146, 27 September 2011; and M.D. and Others v. Malta, no. 64791/10, § 27, 17 July 2012). 49. In that respect the Court notes that it is in principle in the interest of a child to preserve the ties with its biological parents, save where weighty reasons exist to justify severing those ties. In the present proceedings before the Court L., owing to his tender age, is not in a position to represent his interests. It is only the first applicant who is able to argue, on his behalf as well, that severing the ties between her as his biological mother and L. also affected his right to respect for his family life. 50. The Court accordingly concludes that the Government’s objection as regards the locus standi of the first applicant to represent L. in the proceedings before the Court must be dismissed. (b) Applicability of Article 8 of the Convention to the present case 51. In its well established case-law the Court has emphasised that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see Johansen v. Norway, 7 August 1996, § 52, Reports of Judgments and Decisions 1996 ‑ III, and Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130). 52. As to the present case, the Court notes that the first applicant gave birth to her son, L. in December 2008. Although the child was placed in a foster family soon after his birth, it would appear that the first applicant continued to visit her son. The Court has already held that family ties exist between a child and its biological parent with whom the child has never lived (see Keegan v. Ireland, 26 May 1994, § 45, Series A no. 290). In the Court’s view there existed a bond between the first applicant and her son from the moment of the child’s birth which bond amounted to a “family life”. Therefore, Article 8 is applicable in the present case. (c) Exhaustion of domestic remedies and compliance with the six-month rule 53. The Court notes that the applicants’ complaints relate to a series of events which ended with the adoption of L. Different proceedings took place before the national authorities. The Court considers that the question of exhaustion of domestic remedies, as submitted by the Government, as well as the issue of compliance with the six-month rule are closely linked to the substance of the complaint. Thus, the Court decides to join the objections to the merits of the case. (d) Conclusion 54. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 55. The first applicant argued that she was intellectually incapable of following the court proceedings for divesting her of her parental rights or understanding the true nature of those proceedings, let alone arguing her case and understanding the decision adopted. She further contended that final separation between her and her biological son through the adoption proceedings, in which she had not participated and her son’s rights had not been protected, violated both hers and her son’s right to respect for their family lives. 56. The Government submitted that the first applicant, as a person who was not divested of legal capacity, had been able to represent her interests in the proceedings before the national courts. The court conducting the proceedings for divesting the first applicant of her parental rights had carefully examined all the relevant facts, commissioned the relevant medical reports and reached adequate conclusions. The first applicant, who had successfully completed professional education, had been capable of engaging the services of a lawyer had she so wished. 57. As regards the adoption proceedings, they submitted that the first applicant had no longer had parental rights in respect of L. when those proceedings had been conducted. 2. The Court’s assessment (a) Whether there was an interference 58. The Court has already cited that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see paragraph 54 above). Domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see Johansen, cited above, § 52; Haase v. Germany, no. 11057/02, § 82, ECHR 2004 ‑ III (extracts); and X v. Croatia, no. 11223/04, § 45, 17 July 2008). 59. In the present case the measures taken by the State in respect of the first applicant’s relationship with her son L. originated in a decision of 10 May 2010 whereby the first applicant was divested of her parental rights in respect of her son and in his adoption. 60. There is no doubt that divesting a parent of his or her parental rights and putting a child up for adoption are both very restrictive measures, the latter of which results in the complete disruption of the relationship between a parent and a child. In this case those measures amounted to an interference with the applicants’ right to respect for their family life as guaranteed by paragraph 1 of Article 8 (see X v. Croatia, cited above, § 45). (b) Legality of the interference and legitimate aim 61. The Court accepts that the measures at issue had a basis in national law, namely, the Family Act and that the relevant Croatian legislation is designed to protect children. There is nothing to suggest that it was applied in the present case for any other purpose. The Court accepts therefore that the decisions at issue were aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan, cited above, § 44; Görgülü v. Germany, no. 74969/01, § 37, 26 February 2004; Glesmann v. Germany, no. 25706/03, § 101, 10 January 2008; and X v. Croatia, cited above, § 46). It remains to be determined whether the interference could be regarded as “necessary in a democratic society”. (c) Necessity in a democratic society 62. The central issue in this case is whether the procedures followed respected the applicants’ family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as necessary in a democratic society. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. The Court reiterates that it is an interference of a very serious order to split up a family. The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult. To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect. On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible as in a case where a child has been taken away from his parents and freed for adoption. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, Series A no. 121, § 63; X v. Croatia, cited above, § 47; and R. and H. v. the United Kingdom, no. 35348/06, § 76, 31 May 2011). 63. It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore, in the Court’s view, be such as to ensure that their views and interests are made known to, and duly considered by, the local authority and that they are able to exercise in due time any remedies available to them. In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of Article 8 (see B. v. the United Kingdom, cited above, § 64; and X v. Croatia, cited above, § 48). 64. In the procedures applicable to the determination of issues relating to family life parents normally have a right to be heard and to be fully informed, although restrictions on these rights could, in certain circumstances, find justification under Article 8 § 2. The Court will examine these aspects in order to determine whether the proceedings have been conducted in a manner which is fair and affords due respect to the interests protected by Article 8 (see B. v. the United Kingdom, cited above, § 65; Tysiąc v. Poland, no. 5410/03, § 113, ECHR 2007 ‑ ...; and X v. Croatia, cited above, § 49). 65. In the present case the Court is not called upon to determine whether the adoption of the first applicant’s child was justified as such, but rather to determine whether the procedures followed were in compliance with the requirements of Article 8 of the Convention. The course of events concerning the first applicant’s child is set out in paragraphs 7 to 16 above. 66. The Court notes that immediately after his birth L., the biological son of the first applicant, was placed in foster care by a decision of the K. Welfare Centre. When the child was about a year and five months old the first applicant was divested of her parental rights in respect of L. Following the decision to that effect, L. was put up for adoption by the competent Social Welfare Centre. The first applicant, who by the time she was granted legal assistance could no longer use any remedies in respect of the decision divesting her of parental rights, made an attempt to have her parental rights restored – a possibility envisaged under the relevant domestic law (section 114 §§ 4 and 5 of the Family Act). However, her request was dismissed, since in the meantime L. had been put up for adoption and adopted by third parties, following adoption proceedings to which the first applicant was not a party, nor had she been informed of them. 67. The Court considers that the above events, which led to a gradual severance of the ties between a biological mother and her son, are to be seen in their continuity and assessed as a whole. 68. In this context, reference should also be made to the European Convention on the Adoption of Children, which is not binding on Croatia. This text allows that where the mother or father has been deprived of his or her parental rights in respect of the child, the law may provide that it is not necessary to obtain his or her consent. Likewise, in its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe’s Committee of Experts on Family Law accepts that the consent of the father or mother or both may be dispensed with by law if they do not hold parental responsibility. 69. The Court notes also that a vast majority of the member States have in their legal systems a possibility of divesting a parent of his or her parental rights. As regards the role of a parent divested of parental rights in any further proceedings concerning adoption of their child, the legal systems of the member States differ. While approximately half of the member states do recognise, at least to a certain extent, the right of a parent divested of his or her parental rights to participate in the adoption proceedings, the other half does not. 70. In view of the above, the Court, without having to decide about the compliance of legislation which does not allow a parent divested of parental rights to participate in the adoption proceedings with Article 8 of the Convention, will examine whether sufficient safeguards for the protection of the applicants’ private and family life were provided at any stage of the process of severing the applicants’ mutual ties. 71. As regards the proceedings for divesting parents of their parental rights, the Court notes that the Croatian Family Act contains detailed provision concerning the issue of divesting a parent of his or her parental rights. Thus, it is provided that a parent is to be divested of parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights. The grounds for such a measure are listed in section 114(2) of the Family Act. Procedures to be followed are also envisaged by that Act. The interests of a child are protected by appointment of a special guardian in these proceedings (section 114(6) of the Family Act). The courts conducting any proceedings under the Family Act are obliged to ensure that the interests of persons suffering from mental ailments or of persons who, for other reasons, are not able to protect their rights and interests, are adequately protected (section 267 of the Family Act). The Court is thus satisfied that the Croatian legislation provides for adequate safeguards as regards the interests of parents and their children in the proceedings for divesting the parents of parental rights. 72. The first applicant, despite the requirement under section 267 of the Family Act, in the proceedings divesting her of her parental rights was not represented. The national authorities established that she had a mild mental disability and that despite the need for ongoing psychiatric treatment she was not receiving any such treatment. She was enrolled in a special needs programme at school, had a speech impediment and a limited vocabulary. The Court considers that the national authorities should have ensured that, in view of the importance of the proceedings at issue for her right to respect for her family life, the first applicant’s interests were adequately protected in the proceedings at issue. That the first applicant could not properly understand the full legal effect of such proceedings and adequately argue her case and thus protect her rights and interests as the biological mother of L., is evidenced by her above-described personal circumstances. 73. However, despite the findings of the national authorities that the first applicant suffered from a mild mental disability, and the assessment of the court conducting the proceedings in question that she had a speech impediment and a limited vocabulary, that same court allowed her to remain unrepresented. The Court finds it difficult to accept that a person whose speech impediment and limited vocabulary were taken as grounds to fear that she would not be able to teach her child to speak properly, would be able to argue her case in proceedings before the national courts concerning her parental rights. 74. The first applicant sought legal aid which was granted, but only after the time-limit for lodging the appeal had already expired. In these circumstances the lawyer acting on behalf of the applicant choose the only path that was still available for the protection of the first applicant’s parental rights in respect of L. by attempting to restore them under section 114(5) of the Family Act. 75. Owing to the decision of 10 May 2010 divesting the first applicant of her parental rights in respect of L., the first applicant was subsequently excluded from the adoption of L. Therefore, in the proceedings preceding a decision of such paramount consequences, the applicants’ rights and interests should have been adequately protected by the first applicant being provided with proper assistance by a lawyer in the interests of affording her the requisite consideration of her views and protection of her interests as well as those of her biological son L. from the standpoint of preserving ties with his biological mother. 76. While those proceedings were pending, the first applicant learned on 7 December 2010 that L. had already been adopted. The proceedings for restoring the first applicant’s parental rights were therefore terminated on 28 January 2011. No further remedy would have served any purpose, since no proceedings concerning the first applicant’s parental rights could be continued owing to the fact that L. had already been adopted. 77. The Court further notes that the first applicant was not informed of the adoption proceedings and was not heard at any time in that connection. Since she was not a party to the adoption proceedings she had no right to use any remedy in the context of those proceedings. 78. While the Court can accept that her consent, owing to the fact that she had been divested of her parental rights, was not necessary in the adoption proceedings, it nevertheless considers that where, as in Croatia, a national system allows for parental rights to be restored, it is indispensable that a parent be given an opportunity to exercise that right before the child is put up for adoption, should such a possibility have any meaning. In the present case, by not informing the first applicant about the adoption proceedings the national authorities deprived her of the opportunity to seek restoration of her parental rights before the ties between the biological parent and child were finally severed by the child’s adoption. She was thus prevented from enjoying her right guaranteed by the Family Act. 79. The foregoing reveals, in the opinion of the Court, insufficient involvement of the first applicant in the decision-making process. 80. Against this background the Court considers that there were no adequate safeguards at any stage of the process of severing the ties between the applicants. It finds that there has been a violation of Article 8 of the Convention and dismisses the Government’s objections as to the exhaustion of domestic remedies and compliance with the six-month rule. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 81. The first applicant also complained, under Article 6 of the Convention, that she had not been a party to the adoption proceedings, that she had not given her consent to the adoption and that she had never been informed that such proceedings had been instituted. In this connection, the first applicant complained that her child’s guardian had been an employee of the Centre that had carried out the adoption proceedings, and claimed that she had influenced the initiation of the adoption proceedings instead of protecting the first applicant’s rights. 82. The Government contested these arguments. 83. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 84. The Court finds, however, that this complaint essentially overlaps with the issues which have been examined under Article 8 of the Convention. Having found a violation of this provision, the Court holds that no separate issue arises under Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 85. The first applicant complained that her child had been taken from her owing to her mental disability and physical invalidity and that therefore she had been discriminated against on that basis. She relied on Article 14 of the Convention, the relevant part of which reads: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 86. The Government argued that the first applicant had failed to exhaust domestic remedies because she had not lodged an action for the protection against discrimination under the Prevention of Discrimination Act. 87. The first applicant replied that she had not been required to use the remedy relied on by the Government because her parental rights could not be restored by means of that remedy. 88. The Court considers that the first applicant could in no manner address the situation complained of outside the proceedings conducted before the national authorities which concerned the relationship between her and her son, namely those divesting her of parental rights, the proceedings where she attempted to have her parental rights restored; and the adoption proceedings concerning L. Therefore, the first applicant was not required to institute any separate proceedings under the Prevention of Discrimination Act. 89. The Court considers further that this complaint is closely linked to the one concerning the first applicant’s right to respect for her private and family life under Article 8 of the Convention and must also therefore be declared admissible. B. Merits 90. The first applicant argued that her biological son had been taken from her by the national authorities on the basis of her disability and that that amounted to discrimination contrary to Article 14 of the Convention. 91. The Government maintained that L. had been separated from his biological mother, the first applicant, owing to her failure to secure adequate conditions for them to live together and not her disability and that therefore there had been no discrimination on any ground in the case at issue. 92. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII). 93. As to the present case, the Court notes that the first applicant claimed that L. had been taken from her solely on the basis of her disability, while the Government claimed that he had been taken owing to lack of adequate conditions for their living together. 94. The Court considers that the main issue in the present case is the procedures followed by the national authorities in separating L. from the first applicant, his biological mother. In this regard the Court has already found a violation of Article 8 of the Convention after establishing shortcomings in the proceedings. In view of the Court’s analysis under that Article and the violation found, the Court considers that in the circumstances of the present case it is not necessary to examine any further complaint under Article 14 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 95. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 96. The first applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 97. The Government deemed the sum claimed excessive. 98. Having regard to all the circumstances of the present case, the Court accepts that the first applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to her. B. Costs and expenses 99. The first applicant also claimed EUR 4,400 for the costs and expenses incurred before the Court. 100. The Government deemed the sum claimed excessive. 101. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before it, plus any tax that may be chargeable to the first applicant. C. Default interest 102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that, by not informing the first applicant about the adoption proceedings, the national authorities had deprived her of the opportunity to seek restoration of her parental rights before the ties between her and her son had been finally severed by his adoption. The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, both as regards the confinement of the applicant as well as the placement in care of her minor children. It pointed out in particular that in Romania there had been a number of precedents of improper confinement of individuals with psychiatric disorders, in spite of recent legislative changes in favour of patients’ rights. It concluded that, judging from the applicant’s medical history, the authorities had not followed the applicable procedure when deciding on her confinement. Furthermore, the absence of special protection, especially through the official appointment of a lawyer or designation of a guardian, had had the effect of depriving the applicant of her right to take part in the decision-making process concerning the placement of her children in residential care. |
666 | Private persons | RELEVANT LEGAL FRAMEWORK 20. The right to protection of a person’s personal integrity is guaranteed by Articles 11 et seq. of the Civil Code (Law no. 40/1964 Coll., as amended). The relevant provisions are summarised in the Court’s judgment in Radio Twist a.s. v. Slovakia (no. 62202/00, §§ 33-36, ECHR 2006 ‑ XV). 21. In addition, Article 15 of the Civil Code provides that after the death of an individual, the right to protection of his or her personal integrity may be asserted by his or her spouse or children or, if there are no spouse and children, by his or her parents. THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 22. The applicant complained that the dismissal of her action against the newspaper publishers amounted to a violation of her right to respect for her private life, as guaranteed by Article 8 of the Convention, the relevant parts of which read as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.” Admissibility 23. It is clear from the Court’s case-law (see Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008, with further references; Editions Plon v. France, no. 58148/00, § 46, ECHR 2004 ‑ IV; and Putistin v. Ukraine, no. 16882/03, § 33, 21 November 2013), and the Government accepted, that dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Article 8 of the Convention. 24. The Court further considers that the effect of the statements made in the articles in question about the applicant’s son rose above the “threshold of severity” required by the Court’s case-law (see Denisov v. Ukraine [GC], no. 76639/11, § 112, 25 September 2018); thus the applicant’s private life has been affected to a degree attracting the application of Article 8. That provision is therefore applicable in the circumstances arising in the present case. 25. The Court further notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions 26. The applicant argued that the domestic courts had misapplied the relevant criteria established by the Court’s case-law and had failed to achieve a fair balance between the competing rights at stake. Considering that the question of whether the disseminated information was of public importance could only be assessed on the basis of objective criteria, she observed that neither the subjective perception of the journalists, nor the fact that priests’ misconduct had been at that time subject to public discussion, gave any justification for disseminating false statements and inappropriate value judgments concerning her son. 27. The applicant further emphasised that her son had been a simple parish priest until his death in 2006, hence he had no longer been active in public life at the time of the publication of the articles and could thus not have been considered a person of public interest; moreover, his criminal convictions had occurred a long time ago, and the time interval that had passed had weakened any potential interest of the public in receiving such information. Nor could the involvement of the Church in her son’s case be considered a matter of public concern, as maintained by the Government, since her son had never been in custody and it had not been proven that any guarantee had been offered on his behalf by the Church. 28. In the applicant’s view, not only did the articles fail to pursue any legitimate aim but their tabloid style and striking language (for example “secrets of a man in a cassock”, “shocking information”, and “disgusting paedophile orgies”) clearly indicated that their authors’ purpose was to shock, meet deadlines and increase sales figures. Also, unlike in Putistin (cited above), the articles in question were directly concerned with her late son’s private and sexual life, his criminal convictions and the reasons for his death, and had identified him using his full name and picture. Although the applicant had not been directly mentioned, the articles and the subsequent negative reactions to them by the people around her had had significant detrimental effects on her, particularly as she was known to be the mother of the deceased, bore the same family name as him, and lived in the village mentioned in the article. 29. Lastly, the applicant challenged the Government’s argument that the journalists had tried to verify the information provided by sources other than the criminal files, and had acted in good faith. Referring to the records of the court hearings (see paragraph 8 above), she noted that the journalists had merely asserted that they had believed, or did not remember, their sources, and that the journalists’ statements concerning their contacts with the bishop’s office and a mayor had not been proved to be true. Moreover, the authenticity of the only document submitted by the journalists, that is a copy of a record of her late son’s questioning, which the courts had regarded as key evidence, was doubtful. 30. The Government submitted that the domestic courts had duly applied the relevant criteria formulated by the Court and had struck a fair balance between the applicant’s and the newspaper publishers’ rights. In their view, it followed from the journalists’ statements before the courts that they had considered the information published to be a matter of public concern and that they had attempted to verify by different means the facts provided by their sources. The Government were themselves of the view that, in so far as the articles related to the moral profile of a Roman Catholic priest, that is a person in the public eye, and to the Church’s attitude to him, they constituted a contribution to a debate of public interest, and that the journalists’ conduct could be regarded as being bona fide. 31. The Government further argued that, although the applicant’s approach as a mother was understandable, she had mainly complained of disrespect to the memory of her son, which demonstrated her bias. 32. With regard to the time interval between the applicant’s son’s criminal convictions and death, and the publication of the articles, the Government contended that it followed from the Court’s case-law (the Government cited Éditions Plon, cited above, § 53) that the more time that had elapsed, the more the public interest in an open discussion prevailed over the interest in protecting the rights of the deceased person. 33. Lastly, the Government argued that the applicant, who had not been mentioned in the articles in dispute, had not been directly affected by them, although their impact and effect on her was admittedly greater than in Putistin (cited above). The articles had contained only the facts which were deemed significant for assessing the applicant’s son’s morals and which had originated mainly from his criminal convictions or the statements of third persons; as such, their content was not unacceptable. The Court’s assessment 34. The Court notes at the outset that the applicant can be regarded as having been directly affected by the articles in question (see also paragraph 48 below). Thus the present case requires an examination of the fair balance that has to be struck between her right to the protection of her private life under Article 8 and the newspaper publishers’ right to freedom of expression as guaranteed by Article 10. 35. In exercising its supervisory function, the Court’s task is to review, in the light of the case as a whole, whether the decisions taken by the domestic courts pursuant to their power of appreciation are in conformity with the relevant criteria laid down in the Court’s case-law (see, among many other authorities, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95-113, ECHR 2012; Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78 ‑ 95, 7 February 2012; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83-93, ECHR 2015 (extracts)). The Court has already identified a number of criteria in the context of balancing the competing rights, which include the following: contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the report; the prior conduct of the person concerned; the content, form and consequences of the publication; and, where appropriate, the circumstances in which photos were taken. 36. In the circumstances of the present case, the Court considers it appropriate to examine the applicable criteria, which are of relevance to the present case, in this specific order: how well known the person concerned was and the prior conduct of that person; the subject matter, content and consequences of the articles; and the contribution to a debate of general interest. (a) How well known the person concerned was and the prior conduct of that person 37. The Court notes that, while alive, the applicant’s son was not a well ‑ known public figure or a high-ranking Church dignitary (see Albert ‑ Engelmann-Gesellschaft mbH v. Austria, no. 46389/99, § 27, 19 January 2006). The domestic courts considered, nevertheless, that, as a parish priest, he could not be treated as an ordinary person but rather as a public figure expected to be more tolerant to criticism (see paragraph 15 above). 38. The Court further observes that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of, inter alia, the commission of a criminal offence (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012, and M.L. and W.W. v. Germany, nos. 60798/10 and 65599/10, § 88, 28 June 2018). However, a criminal conviction does not deprive the convicted person of his or her right to be forgotten, all the more so if that conviction has become spent. Even if a person may indeed acquire a certain notoriety during a trial, the public’s interest in the offence and, consequently, the person’s notoriety, can decline with the passage of time. Thus, after a certain period of time has elapsed, persons who have been convicted have an interest in no longer being confronted with their acts, with a view to their reintegration in society. This may be especially true once a convicted person has been finally released (see M.L. and W.W., cited above, § 100). 39. In the present case, it is true that the applicant’s son’s prior conduct led to him being the subject of criminal proceedings and being convicted. In the light of the Court’s case-law cited above, this cannot, however, deprive him entirely of the protection of Article 8. Moreover, it is to be noted that the applicant’s son was given a conditional sentence and complied with its conditions during the probationary period. Thus, the Court has to take into account that not only were the articles in question published several years after the applicant’s son’s criminal convictions but also after those convictions had become spent (see paragraph 5 above). (b) Subject matter, content and consequences of the articles 40. The Court has repeated time and again the distinction that needs to be made between statements of fact and value judgments (see, among many other authorities, Morice v. France [GC], no. 29369/10, § 126, ECHR 2015). It reiterates that even a value judgment must be based on sufficient facts in order to constitute a fair comment under Article 10 and that the difference between a value judgment and a statement of fact finally lies in the degree of factual proof which has to be established (see, for example, Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 40, ECHR 2003 ‑ XI, and Dyuldin and Kislov v. Russia, no. 25968/02, § 48, 31 July 2007). 41. Furthermore, journalists are under an obligation to respect certain duties and responsibilities (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 97, ECHR 2004 ‑ XI). In particular, the right of journalists to divulge information concerning issues of general interest is subject to their acting in good faith and providing “reliable and precise” information in accordance with the ethics of journalism (see, for example, Godlevskiy v. Russia, no. 14888/03, § 42, 23 October 2008, and Ageyevy v. Russia, no. 7075/10, § 226, 18 April 2013). 42. Turning to the contents of the articles in question, the Court notes that the material was presented in a sensational and gossip-like manner, with flashy headlines (see paragraph 6 above) placed on the front pages, along with – in the third article – photographs of the applicant’s late son. The Court finds that the allegations made by the tabloid press in respect of the latter were of a serious nature and were presented as statements of fact which had led to his criminal convictions, rather than value judgments. 43. In this context, the Court observes, first, that despite finding that the articles had also relied on sources other than the criminal files (see paragraph 15 above), the domestic courts did not draw a clear distinction between statements of fact and value judgments. 44. This failure appears particularly salient in respect of the applicant’s son’s purported suicide, which could not have been mentioned in the criminal files (as it had happened after the convictions) and which the applicant had denied as being her son’s cause of death (see paragraph 7 above). On this point, no conclusion was drawn from the very vague response of the journalist A.H. (see paragraph 10 above). 45. The Court further observes that many statements in the articles were presented in a way which made them appear to have been verified or confirmed by a credible source of information, be it a mayor or the bishop’s office (see paragraph 6 in fine above). Again, the courts omitted to take account of the evasive answers of the journalists and of their inability to adduce concrete evidence in support of their allegations (see paragraph 10 above). On the contrary, they concluded (see paragraphs 15 and 17 above) that, considered in the light of the applicant’s son’s conviction, the journalists’ unidentified sources could be deemed credible, without attaching any weight to the fact that the bishop’s office had denied having had any communication with the newspapers, and that the information about the Church having offered a guarantee on behalf of the applicant’s son had been disproved. 46. Moreover, the Court is not convinced by the reasons that the District Court relied on to accept an incomplete copy of the record of the applicant’s son’s questioning as a credible source of information. It notes that if the statement given by the applicant’s son before an unidentified authority had been made before the opening of the prosecution of the applicant’s son, as assumed by the District Court, and had not been reflected in the convicting judgment, it had not been publicly available and the journalist in question should have been particularly careful in using it. However, the journalist was not able to provide the domestic court with any details as to how he had obtained that document or verified its authenticity (see paragraph 10 above). 47. In such circumstances, the Court finds that the domestic courts failed to carry out an adequate assessment of all the elements relevant to the matter and of the evidence available. Although the journalists must be afforded some degree of exaggeration or even provocation, the Court considers that the frivolous and unverified statements about the applicant’s son’s private life must be taken to have gone beyond the limits of responsible journalism (compare OOO Ivpress and Others v. Russia, nos. 33501/04 and 3 others, § 77, 22 January 2013). 48. Lastly, the Court is ready to accept that the distorted facts and the expressions used must have been upsetting for the applicant and that they were of such a nature as to be capable of considerably and directly affecting her feelings as a mother of a deceased son as well as her private life and identity, the reputation of her deceased son being a part and parcel thereof (see Putistin, cited above, § 33, and Dzhugashvili v. Russia (dec.), no. 41123/10, §§ 27 and 30, 9 December 2014). (c) Contribution to a debate of general interest 49. The Court reiterates that in the balancing of interests under Articles 8 and 10 of the Convention, the contribution made by photos or articles in the press is an essential criterion (see Von Hannover (no. 2), cited above, § 109, with further references). 50. The Court has already accepted that articles focusing on similar topics, namely the discrepancy between the official positions of the Roman Catholic Church in respect of homosexuality, the private conduct of representatives of that Church and the question whether they lived up to their Church’s proclaimed standards, contributed to a debate of general interest (see Verlagsgruppe News GmbH and Bobi, cited above, §§ 75, 76 and 80, and Rothe v. Austria, no. 6490/07, § 55, 4 December 2012). 51. Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to the techniques of reporting which should be adopted in a particular case (see, among other authorities, Von Hannover, cited above, § 102). That being said, the Court has already accepted that it is legitimate to use individual cases to highlight a more general problem (see Eerikäinen and Others, cited above, § 66). 52. In the present case, the Court can accept that the subject of sexual abuse by clergymen and the attitude of the Roman Catholic Church thereto, as identified by the domestic courts (see paragraph 15 above), was in the public interest, and that the criminal cases in respect of the applicant’s son were selected as an example illustrating the problems involved. 53. However, the Court is convinced that it was possible to inform the public adequately about the matter at issue by means which entailed less interference with the applicant’s son’s legitimate interests, namely by reporting only the facts accessible from the publicly available criminal files. In this context, the Court reiterates that there is a distinction to be drawn between reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life. In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a “public watchdog” are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life (see, in particular, Mosley v. the United Kingdom, no. 48009/08, § 114, 10 May 2011). In the light of those considerations, the Court is of the view that the publication of additional, particularly intrusive information concerning the intimate sphere of the applicant’s son’s private life and the publication of his picture cannot be justified by any considerations of general interest. 54. Thus, the Court finds that, as well as being rather provocative and sensationalist, the articles in question could hardly be considered as having made a contribution to a debate of general interest. (d) Conclusion 55. The Court considers that it was crucial in the present case that the domestic courts make a careful assessment of the presence and level of public interest in the publishing of the information in question, and that the domestic courts strike a balance between any such public interest and the applicant’s individual interests (see Ringier Axel Springer Slovakia, a.s. v. Slovakia (no. 3), no. 37986/09, § 83, 7 January 2014). 56. However, it follows from what has been said above that the domestic courts failed to carry out a balancing exercise between the applicant’s right to private life and the newspaper publishers’ freedom of expression in conformity with the criteria laid down in the Court’s case-law. 57. In addition, as regards the procedural protection inherent in Article 8 of the Convention (see, for example, Turek v. Slovakia, no. 57986/00, §§ 111-13, ECHR 2006 ‑ II (extracts)), the Court observes that, in defence of her substantive rights under Article 8 of the Convention, the applicant lodged a complaint under Article 127 of the Constitution. However, the Constitutional Court dismissed that complaint on the basis of the premise, stemming from no more than its own decision ‑ making practice, that no such remedy was available because no violation of the applicable rules of procedure had been established (see paragraph 19 above; see Soltész v. Slovakia, no. 11867/09, § 54, 22 October 2013, and Ringier Axel Springer Slovakia, a.s., cited above, § 86). On this point, the Court considers that subjecting the constitutional review of the applicant’s rights under Article 8 of the Convention to a violation of her procedural rights under Article 6 § 1 amounts to an excessive formalism which is not in line with the procedural safeguards stemming from Article 8 (see, mutatis mutandis, V.C. v. Slovakia (dec.), no. 18968/07, 16 June 2009). 58. The foregoing considerations are sufficient to enable the Court to conclude that, notwithstanding the margin of appreciation allowed to the domestic courts in this field, the State has failed to fulfil its positive obligations under Article 8. 59. There has accordingly been a violation of Article 8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 61. The applicant claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage for her mental suffering and feelings of injustice. 62. The Government contested the claim as being overstated and requested that, should the Court find any violation of the applicant’s Convention rights, any just satisfaction be awarded in an adequate amount. 63. The Court awards the applicant EUR 5,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. Costs and expenses 64. The applicant also claimed EUR 6,371.72 for the costs and expenses incurred before the domestic courts and the Court, including the translation costs. 65. The Government contested the claim since the applicant had failed to substantiate it by any document proving that she had paid for her legal representation or was under a contractual obligation to do so. 66. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Under Rule 60 §§ 2 and 3 of the Rules of Court “the applicant must submit itemised particulars of all claims, together with any relevant supporting documents”, failing which “the Chamber may reject the claim in whole or in part” (see Zborovský v. Slovakia, no. 14325/08, § 67, 23 October 2012). 67. In the instant case, the Court observes that the applicant did not substantiate her claim for the costs of legal services with any relevant supporting documents establishing that she was under an obligation to pay them or that she had actually paid. Accordingly, the Court does not award any sum on this account (see Cumpǎnǎ and Mazǎre, cited above, §§ 133-34, and Zborovský, cited above, § 68). 68. On the other hand, the Court awards the applicant EUR 267 in respect of the translation costs, which the applicant supported by relevant invoices, plus any tax that may be chargeable to the applicant. Default interest 69. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the Slovakian courts had failed to carry out a balancing exercise between the applicant’s right to private life and the newspaper publishers’ freedom of expression in conformity with the criteria laid down in the Court’s case-law. The Court noted, in particular, that the distorted facts and the expressions used must have been upsetting for the applicant and they had been of such a nature as to be capable of considerably and directly affecting her feelings as a mother of a deceased son as well as her private life and identity, the reputation of her deceased son being a part and parcel thereof. |
252 | (2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation | II. Relevant domestic law and practice A. Criminal-law provisions against torture 24. The Turkish Criminal Code makes it an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture, and Article 245 in respect of ill-treatment). 25. Article 8 of Decree no. 430 of 16 December 1990 provides as follows: "No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification." 26. Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made. However, in the state of emergency region, the investigation of criminal offences by members of the administration is taken up by local administrative councils, composed of civil servants. These councils are also empowered to decide whether or not to bring a prosecution, subject to an automatic judicial review before the Supreme Administrative Court in cases where they decide not to prosecute (Legislative Decree no. 285). B. Administrative law remedies 27. Article 125 of the Turkish Constitution provides as follows: "All acts or decisions of the administration are subject to judicial review ... The administration shall be liable to indemnify any damage caused by its own acts and measures." By virtue of this provision, the State is liable to indemnify any person who can prove that he has suffered damage in circumstances where the State has failed in its duty to safeguard individual life and property. C. Civil proceedings 28. Any illegal act which causes damage committed by a civil servant (except the regional or district prefects in the state of emergency region) may be the subject of a claim for compensation before the ordinary civil courts. D. The law relating to detention in police custody 29. Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence. The permissible periods of detention without judicial control are longer in relation to proceedings before the State security courts. In such a case, it is possible to detain a suspect for a period of forty-eight hours in connection with an individual offence, and fifteen days in connection with a collective offence (section 30 of Law no. 3842 of 1 December 1992, re-enacting Article 11 of Decree having the force of law no. 285 of 10 July 1987). In the region under emergency rule, however, a person arrested in connection with proceedings before the State security courts may be detained for four days in the case of individual offences and thirty days in the case of collective offences before being brought before a magistrate (ibid., re-enacting section 26 of Law no. 2935 of 25 October 1983). 30. Article 19 of the Turkish Constitution gives to a detained person the right to have the lawfulness of his detention reviewed, on application to the court with jurisdiction over his case. E. The Turkish derogation from Article 5 of the Convention (art. 5) 31. In a letter dated 6 August 1990, the Permanent Representative of Turkey to the Council of Europe informed the Secretary General of the Council of Europe that: "The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to amount to a threat to the life of the nation in the meaning of Article 15 of the Convention (art. 15). During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces. The threat to national security is predominantly occurring in provinces [i.e. Elazig, Bingöl, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkâri, Batman and Sirnak ] of South East Anatolia and partly also in adjacent provinces. Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights. To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10, 1990 the decrees with force of law nos. 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention for Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13 (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13). A descriptive summary of the new measures is attached hereto. The issue of their compatibility with the Turkish Constitution is currently pending before the Constitutional Court of Turkey. The Government of Turkey will inform the Secretary General of the Council of Europe when the measures referred to above have ceased to operate. This notification is given pursuant to Article 15 (art. 15) of the European Convention of Human Rights." Attached to this letter was a "descriptive summary of the content of the Decrees which have the force of law nos. 424 and 425". The only measure therein described relating to Article 5 of the Convention (art. 5) was as follows: "The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Minister of the Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency ..." 32. By a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Decree no. 430 had been enacted, which limited the powers previously afforded to the Governor of the state of emergency region under Decrees nos. 424 and 425. 33. On 5 May 1992 the Permanent Representative wrote to the Secretary General that: "As most of the measures described in the decrees which have the force of Law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13) are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention (art. 5) only. The Derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention (art. 6, art. 8, art. 10, art. 11, art. 13) is no longer in effect; consequently, the corresponding reference to these Articles (art. 6, art. 8, art. 10, art. 11, art. 13) is hereby deleted from the said Notice of Derogation." PROCEEDINGS BEFORE THE COMMISSION 34. In his application of 20 May 1993 (no. 21987/93) to the Commission, Mr Aksoy complained that he had been subjected to treatment contrary to Article 3 of the Convention (art. 3) during his detention in police custody in November/December 1992; that, during the course of his detention, he was not brought before a judge or other authorised officer in violation of Article 5 para. 3 (art. 5-3); and that he was not provided with the opportunity to bring proceedings against those responsible for his ill ‑ treatment, in violation of Articles 6 para. 1 and 13 (art. 6-1, art. 13). Following Mr Aksoy ’ s death on 16 April 1994, his representatives alleged that the killing was a direct result of his application to the Commission and was an interference with his right of individual petition under Article 25 of the Convention (art. 25). 35. The Commission declared the application admissible on 19 October 1994. In its report of 23 October 1995 (Article 31) (art. 31), it expressed the opinion, by fifteen votes to one, that there had been a violation of Article 3 (art. 3) and that there had been a violation of Article 5 para. 3 (art. 5-3); by thirteen votes to three, that there had been a violation of Article 6 para. 1 (art. 6-1) and that no separate issue arose under Article 13 (art. 13); and, unanimously, that no further action need be taken in respect of the alleged interference with the effective exercise of the right of individual petition under Article 25 (art. 25). The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 36. At the hearing, the Government invited the Court to reject the application on the ground that the available domestic remedies had not been exhausted or, in the alternative, to find that there had been no violation of the Convention. 37. On the same occasion, the applicant asked the Court to find violations of Articles 3, 5, 6, 13 and 25 of the Convention (art. 3, art. 5, art. 6, art. 13, art. 25), and to rule that these breaches had been aggravated because the measures complained of formed part of an administrative practice. He also requested just satisfaction pursuant to Article 50 of the Convention (art. 50). AS TO THE LAW I. THE COURT ’ S ASSESSMENT OF THE FACTS 38. The Court recalls its constant case-law that under the Convention system the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). While the Court is not bound by the Commission ’ s findings of fact and remains free to make its own appreciation in the light of all the material before it, it is only in exceptional circumstances that it will exercise its powers in this area (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1214, para. 78). 39. In the instant case, it must be recalled that the Commission reached its findings of fact after a delegation had heard evidence in Turkey on two separate occasions, in addition to hearings in Strasbourg (see paragraph 23 above). In these circumstances, the Court considers that it should accept the facts as established by the Commission (see, mutatis mutandis, the above ‑ mentioned Akdivar and Others judgment, p. 1214, para. 81). 40. It is thus against the background of the facts as found by the Commission (see paragraph 23 above) that the Court must examine the Government ’ s preliminary objection and the applicant ’ s complaints under the Convention. II. THE GOVERNMENT ’ S PRELIMINARY OBJECTION A. The arguments of those appearing before the Court 41. The Government asked the Court to reject the applicant ’ s complaint under Article 3 of the Convention (art. 3) on the ground that, contrary to Article 26 of the Convention (art. 26), he had failed to exhaust the domestic remedies available to him. Article 26 (art. 26) provides: "The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken." The applicant (see paragraph 3 above), with whom the Commission agreed, argued that he had done all that could be expected of him to exhaust domestic remedies. 42. The Government contended that the rule relating to the exhaustion of domestic remedies was clearly established in international law and in the case-law of the Convention organs, and required the applicant to avail himself of all national remedies unless these clearly offered him no chance of success. In fact, Mr Aksoy could have had recourse to three different types of domestic remedy: a criminal prosecution, a civil action and/or administrative proceedings (see paragraphs 24-28 above). 43. With regard to the first of these options, they submitted that he could have complained about the alleged ill-treatment to the public prosecutor who saw him on 10 December 1992 (see paragraph 18 above). However, according to the Government, Mr Aksoy gave no indication on that occasion or at any time subsequently that he had been ill-treated during his time in police custody. Articles 243 and 245 of the Criminal Code, which were in force throughout Turkey, penalised the use of torture and ill-treatment for the extraction of confessions (see paragraph 24 above). Legislative Decree no. 285 on the state of emergency region transferred the power to carry out investigations into criminal acts allegedly committed by civil servants from the public prosecutors to the administrative councils (see paragraph 26 above). However, decisions by the administrative councils not to prosecute were always reviewed by the Supreme Administrative Court. In this connection, the Government submitted a number of judgments reversing orders made by administrative councils in the state of emergency region and ordering criminal proceedings to be brought against members of the gendarmerie and security police in respect of allegations of ill-treatment of detainees, and other rulings on sentencing for similar forms of misconduct. 44. Nonetheless, the Government reasoned that criminal proceedings were perhaps not the most appropriate remedy in this type of case, because of the emphasis placed on the rights of the accused as opposed to those of the complainant. They therefore drew the Court ’ s attention to the existence of an administrative remedy under Article 125 of the Turkish Constitution (see paragraph 27 above). In order to receive compensation under this provision, an individual needed only to show that there was a causal link between the acts committed by the administration and the wrong suffered; there was no requirement to prove serious misconduct on the part of a government agent. In this connection, the Government submitted examples of administrative decisions in which compensation had been awarded in respect of death caused by torture in police custody. 45. In addition, the Government argued that Mr Aksoy could have brought a civil action for damages. Again, they referred to a number of decisions of the domestic courts, including a judgment of the Court of Cassation in a case concerning a claim for damages for torture, where it was held that offences committed by members of the security forces were governed by the Code of Obligations and that, under Article 53 of that Code, an acquittal for lack of evidence in criminal proceedings was not binding on the civil courts. 46. While the applicant did not deny that the remedies identified by the Government were formally part of the Turkish legal system, he claimed that, in the region under emergency rule, they were illusory, inadequate and ineffective because both torture and the denial of effective remedies were carried out as a matter of administrative practice. In particular, he argued that reports by a number of international bodies showing that the torture of detainees continued to be systematic and widespread in Turkey raised questions about the commitment of the State to bringing an end to this practice. In this respect he referred to the European Committee for the Prevention of Torture ’ s Public Statement on Turkey (15 December 1992); the United Nations Committee against Torture ’ s Summary Account of the Results of the Proceedings Concerning the Inquiry on Turkey (9 November 1993); and the United Nations Special Rapporteur on Torture ’ s Report of 1995 (E/CN.4/1995/34). 47. He stated that there was a policy on the part of the State authorities of denying that torture ever took place, which made it extremely difficult for victims to succeed in receiving compensation and in having those responsible brought to justice. For example, it was now impossible for individuals alleging torture to obtain medical reports proving the extent of their injuries, because the forensic medical service had been reorganised and doctors who issued such reports were either threatened or moved to a different area. Prosecutors in the state of emergency region routinely failed to open investigations into alleged abuses of human rights and frequently refused even to acknowledge complaints. Such investigations as were carried out were biased and inadequate. Furthermore, lawyers and others who acted for the victims of human rights violations were subjected to threats, intimidation and abusive prosecutions and individuals were afraid to pursue domestic remedies because reprisals against complainants were so common. In these circumstances, the applicant claimed that he should not be required to pursue domestic remedies before making a complaint to Strasbourg. 48. In any case, he maintained that he had informed the public prosecutor on 10 December 1992 that he had been tortured (see paragraph 18 above) and asserted that, even if he had not, the prosecutor could plainly have observed that he did not have the proper use of his hands. The failure of the prosecutor to start a criminal investigation made it extremely difficult for the applicant to avail himself of any domestic remedy. It was not possible for him to take steps to ensure that a criminal prosecution was brought, for example by challenging a decision not to bring a prosecution in the administrative courts (see paragraph 26 above), because the lack of investigation meant that no formal decision not to prosecute was ever made. In addition, this failure prejudiced his chances of victory in civil or administrative proceedings, because in order to succeed with either type of claim it would have been necessary to prove that he had suffered torture, and in practice a ruling to that effect by a judge in criminal proceedings would have been required. 49. Finally, he reminded the Court that no remedy was available even in theory in relation to his complaint regarding the length of time he was detained without judicial control, since this was perfectly lawful under the domestic legislation (see paragraph 29 above). 50. The Commission was of the opinion that the applicant had been injured during his time in police custody (see paragraph 23 above). It followed that, although it was not possible to establish exactly what happened during his meeting with the public prosecutor on 10 December 1992, there must undoubtedly have been elements which should have prompted the latter to open an investigation or, at the very least, try to obtain further information about the applicant ’ s state of health and the treatment to which he had been subjected. The applicant had done all that could be expected of him in the circumstances, particularly in view of the facts that he must have felt vulnerable as a result of his detention and ill ‑ treatment and that he suffered health problems requiring hospitalisation following his release. The threats which he claimed to have received after making his application to the Commission and his death in circumstances which had not been fully clarified, were further elements which supported the view that the pursuance of remedies might have been attended by risks. In view of its finding that the applicant had done all that could be required of him to exhaust domestic remedies, the Commission decided that it was not necessary to determine whether there was an administrative practice on the part of the Turkish authorities of tolerating human rights abuses. B. The Court ’ s assessment 51. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 26 of the Convention (art. 26) obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. The rule is based on the assumption, reflected in Article 13 of the Convention (art. 13) - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1210, para. 65). 52. Under Article 26 (art. 26), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. However, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the "generally recognised rules of international law" to which Article 26 (art. 26) makes reference, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see the above-mentioned Akdivar and Others judgment, p. 1210, paras. 66 and 67). 53. The Court emphasises that its approach to the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 26 (art. 26) must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (see the above-mentioned Akdivar and Others judgment, p. 1211, para. 69). 54. The Court notes the provision under Turkish law of criminal, civil and administrative remedies against the ill-treatment of detainees by the agents of the State and it has studied with interest the summaries of judgments dealing with similar matters provided by the Government (see paragraphs 43-45 above). However, as previously mentioned (paragraph 53), it is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress. 55. For the purposes of this examination, the Court reiterates that it has decided to accept the Commission ’ s findings of fact in the present case (see paragraphs 39-40 above). The Commission, as has been seen (in paragraph 50 above), was of the view that the applicant was suffering from bilateral radial paralysis at the time of his interview with the public prosecutor. 56. The Court considers that, even if it were accepted that the applicant made no complaint to the public prosecutor of ill-treatment in police custody, the injuries he had sustained must have been clearly visible during their meeting. However, the prosecutor chose to make no enquiry as to the nature, extent and cause of these injuries, despite the fact that in Turkish law he was under a duty to investigate (see paragraph 26 above). It must be recalled that this omission on the part of the prosecutor took place after Mr Aksoy had been detained in police custody for at least fourteen days without access to legal or medical assistance or support. During this time he had sustained severe injuries requiring hospital treatment (see paragraph 23 above). These circumstances alone would have given him cause to feel vulnerable, powerless and apprehensive of the representatives of the State. Having seen that the public prosecutor was aware of his injuries but had taken no action, it is understandable if the applicant formed the belief that he could not hope to secure concern and satisfaction through national legal channels. 57. The Court therefore concludes that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies. Having reached this conclusion it does not consider it necessary to examine the applicant ’ s claim that there exists an administrative practice of withholding remedies in breach of the Convention. III. THE MERITS A. Alleged violation of Article 3 of the Convention (art. 3) 58. The applicant alleged that he was subjected to treatment contrary to Article 3 of the Convention (art. 3), which states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Government considered the allegations of ill-treatment to be unfounded. The Commission, however, found that the applicant had been tortured. 59. The Government raised various objections to the way in which the Commission had evaluated the evidence. They pointed to a number of factors which, in their view, should have given rise to serious doubt as to whether Mr Aksoy had been ill-treated as he claimed. For example, they questioned why the applicant had made no complaint to the public prosecutor about having been tortured (see paragraph 18 above) and found it difficult to understand why, if he had indeed been subjected to torture, he had not made any inculpatory confession. They also found it suspicious that he had waited for five days between being released from police custody and contacting the hospital (see paragraph 19 above) and observed that it could not be assumed that nothing untoward had occurred in the meantime. Finally, they raised a number of points relating to the medical evidence, including the facts that the applicant took his medical records with him when he left hospital and that there was no medical evidence of burns or other marks left by the application of electric shocks. 60. The applicant complained of having been ill-treated in different ways. He claimed to have been kept blindfolded during interrogation, which caused disorientation; to have been suspended from his arms, which were tied together behind his back ("Palestinian hanging"); to have been given electric shocks, which were exacerbated by throwing water over him; and to have been subjected to beatings, slapping and verbal abuse. He referred to medical evidence from Dicle University Medical Faculty which showed that he was suffering from a bilateral brachial plexus injury at the time of his admission to hospital (see paragraph 19 above). This injury was consistent with Palestinian hanging. He submitted that the treatment complained of was sufficiently severe as to amount to torture; it was inflicted with the purpose of inducing him to admit that he knew the man who had identified him. In addition, he contended that the conditions in which he was detained (see paragraph 13 above) and the constant fear of torture which he suffered while in custody amounted to inhuman treatment. 61. The Court, having decided to accept the Commission ’ s findings of fact (see paragraphs 39-40 above), considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention (art. 3) (see the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, paras. 108-111 and the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 26, para. 34). 62. Article 3 (art. 3), as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 88, and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, para. 79). 63. In order to determine whether any particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction drawn in Article 3 (art. 3) between this notion and that of inhuman or degrading treatment. As it has remarked before, this distinction would appear to have been embodied in the Convention to allow the special stigma of "torture" to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the United Kingdom judgment previously cited, p. 66, para. 167). 64. The Court recalls that the Commission found, inter alia, that the applicant was subjected to "Palestinian hanging", in other words, that he was stripped naked, with his arms tied together behind his back, and suspended by his arms (see paragraph 23 above). In the view of the Court this treatment could only have been deliberately inflicted; indeed, a certain amount of preparation and exertion would have been required to carry it out. It would appear to have been administered with the aim of obtaining admissions or information from the applicant. In addition to the severe pain which it must have caused at the time, the medical evidence shows that it led to a paralysis of both arms which lasted for some time (see paragraph 23 above). The Court considers that this treatment was of such a serious and cruel nature that it can only be described as torture. In view of the gravity of this conclusion, it is not necessary for the Court to examine the applicant ’ s complaints of other forms of ill-treatment. In conclusion, there has been a violation of Article 3 of the Convention (art. 3). B. Alleged violation of Article 5 para. 3 of the Convention (art. 5-3) 65. The applicant, with whom the Commission agreed, claimed that his detention violated Article 5 para. 3 of the Convention (art. 5-3). The relevant parts of Article 5 (art. 5) state: "1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ... ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ..." 66. The Court recalls its decision in the case of Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145 ‑ B, p. 33, para. 62), that a period of detention without judicial control of four days and six hours fell outside the strict constraints as to time permitted by Article 5 para. 3 (art. 5-3). It clearly follows that the period of fourteen or more days during which Mr Aksoy was detained without being brought before a judge or other judicial officer did not satisfy the requirement of "promptness". 67. However, the Government submitted that, despite these considerations, there had been no violation of Article 5 para. 3 (art. 5-3), in view of Turkey ’ s derogation under Article 15 of the Convention (art. 15), which states: "1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision (art. 15-1). 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed." The Government reminded the Court that Turkey had derogated from its obligations under Article 5 of the Convention (art. 5) on 5 May 1992 (see paragraph 33 above). 1. The Court ’ s approach 68. The Court recalls that it falls to each Contracting State, with its responsibility for "the life of [its] nation", to determine whether that life is threatened by a "public emergency" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities. Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the "extent strictly required by the exigencies" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision. In exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation (see the Brannigan and McBride v. the United Kingdom judgment of 26 May 1993, Series A no. 258-B, pp. 49-50, para. 43). 2. Existence of a public emergency threatening the life of the nation 69. The Government, with whom the Commission agreed on this point, maintained that there was a public emergency "threatening the life of the nation" in South-East Turkey. The applicant did not contest the issue, although he submitted that, essentially, it was a matter for the Convention organs to decide. 70. The Court considers, in the light of all the material before it, that the particular extent and impact of PKK terrorist activity in South-East Turkey has undoubtedly created, in the region concerned, a "public emergency threatening the life of the nation" (see, mutatis mutandis, the Lawless v. Ireland judgment of 1 July 1961, Series A no. 3, p. 56, para. 28, the above-mentioned Ireland v. the United Kingdom judgment, p. 78, para. 205, and the above-mentioned Brannigan and McBride judgment, p. 50, para. 47). 3. Whether the measures were strictly required by the exigencies of the situation a) The length of the unsupervised detention 71. The Government asserted that the applicant had been arrested on 26 November 1992 along with thirteen others on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts (see paragraph 12 above). He was held in custody for fourteen days, in accordance with Turkish law, which allows a person detained in connection with a collective offence to be held for up to thirty days in the state of emergency region (see paragraph 29 above). 72. They explained that the place in which the applicant was arrested and detained fell within the area covered by the Turkish derogation (see paragraphs 31-33 above). This derogation was necessary and justified, in view of the extent and gravity of PKK terrorism in Turkey, particularly in the South East. The investigation of terrorist offences presented the authorities with special problems, as the Court had recognised in the past, because the members of terrorist organisations were expert in withstanding interrogation, had secret support networks and access to substantial resources. A great deal of time and effort was required to secure and verify evidence in a large region confronted with a terrorist organisation that had strategic and technical support from neighbouring countries. These difficulties meant that it was impossible to provide judicial supervision during a suspect ’ s detention in police custody. 73. The applicant submitted that he was detained on 24 November 1992 and released on 10 December 1992. He alleged that the post-dating of arrests was a common practice in the state of emergency region. 74. While he did not present detailed arguments against the validity of the Turkish derogation as a whole, he questioned whether the situation in South-East Turkey necessitated the holding of suspects for fourteen days or more without judicial supervision. He submitted that judges in South-East Turkey would not be put at risk if they were permitted and required to review the legality of detention at shorter intervals. 75. The Commission could not establish with any certainty whether the applicant was first detained on 24 November 1992, as he claimed, or on 26 November 1992, as alleged by the Government, and it therefore proceeded on the basis that he was held for at least fourteen days without being brought before a judge or other officer authorised by law to exercise judicial power. 76. The Court would stress the importance of Article 5 (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law (see the above-mentioned Brogan and Others judgment, p. 32, para. 58). Furthermore, prompt judicial intervention may lead to the detection and prevention of serious ill ‑ treatment, which, as stated above (paragraph 62), is prohibited by the Convention in absolute and non- derogable terms. 77. In the Brannigan and McBride judgment (cited at paragraph 68 above), the Court held that the United Kingdom Government had not exceeded their margin of appreciation by derogating from their obligations under Article 5 of the Convention (art. 5) to the extent that individuals suspected of terrorist offences were allowed to be held for up to seven days without judicial control. In the instant case, the applicant was detained for at least fourteen days without being brought before a judge or other officer. The Government have sought to justify this measure by reference to the particular demands of police investigations in a geographically vast area faced with a terrorist organisation receiving outside support (see paragraph 72 above). 78. Although the Court is of the view - which it has expressed on several occasions in the past (see, for example, the above-mentioned Brogan and Others judgment) - that the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for fourteen days without judicial intervention. This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture (see paragraph 64 above). Moreover, the Government have not adduced any detailed reasons before the Court as to why the fight against terrorism in South-East Turkey rendered judicial intervention impracticable. b) Safeguards 79. The Government emphasised that both the derogation and the national legal system provided sufficient safeguards to protect human rights. Thus, the derogation itself was limited to the strict minimum required for the fight against terrorism; the permissible length of detention was prescribed by law and the consent of a public prosecutor was necessary if the police wished to remand a suspect in custody beyond these periods. Torture was prohibited by Article 243 of the Criminal Code (see paragraph 24 above) and Article 135 (a) stipulated that any statement made in consequence of the administration of torture or any other form of ill ‑ treatment would have no evidential weight. 80. The applicant pointed out that long periods of unsupervised detention, together with the lack of safeguards provided for the protection of prisoners, facilitated the practice of torture. Thus, he was tortured with particular intensity on his third and fourth days in detention, and was held thereafter to allow his injuries to heal; throughout this time he was denied access to either a lawyer or a doctor. Moreover, he was kept blindfolded during interrogation, which meant that he could not identify those who mistreated him. The reports of Amnesty International (" Turkey : a Policy of Denial", February 1995), the European Committee for the Prevention of Torture and the United Nations Committee against Torture (cited at paragraph 46 above) showed that the safeguards contained in the Turkish Criminal Code, which were in any case inadequate, were routinely ignored in the state of emergency region. 81. The Commission considered that the Turkish system offered insufficient safeguards to detainees, for example there appeared to be no speedy remedy of habeas corpus and no legally enforceable rights of access to a lawyer, doctor, friend or relative. In these circumstances, despite the serious terrorist threat in South-East Turkey, the measure which allowed the applicant to be detained for at least fourteen days without being brought before a judge or other officer exercising judicial functions exceeded the Government ’ s margin of appreciation and could not be said to be strictly required by the exigencies of the situation. 82. In its above-mentioned Brannigan and McBride judgment (cited at paragraph 68), the Court was satisfied that there were effective safeguards in operation in Northern Ireland which provided an important measure of protection against arbitrary behaviour and incommunicado detention. For example, the remedy of habeas corpus was available to test the lawfulness of the original arrest and detention, there was an absolute and legally enforceable right to consult a solicitor forty-eight hours after the time of arrest and detainees were entitled to inform a relative or friend about their detention and to have access to a doctor (op. cit., pp. 55-56, paras. 62-63). 83. In contrast, however, the Court considers that in this case insufficient safeguards were available to the applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him. 84. The Court has taken account of the unquestionably serious problem of terrorism in South-East Turkey and the difficulties faced by the State in taking effective measures against it. However, it is not persuaded that the exigencies of the situation necessitated the holding of the applicant on suspicion of involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer. 4. Whether the Turkish derogation met the formal requirements of Article 15 para. 3 (art. 15-3) 85. None of those appearing before the Court contested that the Turkish Republic ’ s notice of derogation (see paragraph 33 above) complied with the formal requirements of Article 15 para. 3 (art. 15-3), namely to keep the Secretary General of the Council of Europe fully informed of the measures which were taken in derogation from the Convention and the reasons therefor. 86. The Court is competent to examine this issue of its own motion (see the above-mentioned Lawless judgment, p. 55, para. 22, and the above ‑ mentioned Ireland v. the United Kingdom judgment, p. 84, para. 223), and in particular whether the Turkish notice of derogation contained sufficient information about the measure in question, which allowed the applicant to be detained for at least fourteen days without judicial control, to satisfy the requirements of Article 15 para. 3 (art. 15-3). However, in view of its finding that the impugned measure was not strictly required by the exigencies of the situation (see paragraph 84 above), the Court finds it unnecessary to rule on this matter. 5. Conclusion 87. In conclusion, the Court finds that there has been a violation of Article 5 para. 3 of the Convention (art. 5-3). C. Alleged lack of remedy 88. The applicant complained that he was denied access to a court, in violation of Article 6 para. 1 of the Convention (art. 6-1), which provides, so far as is relevant: "In the determination of his civil rights ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..." In addition, he claimed that there was no effective domestic remedy available to him, contrary to Article 13 of the Convention (art. 13), which states: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." 89. The Government contended that, since the applicant had never even attempted to bring proceedings, it was not open to him to complain that he had been denied access to a court. They further argued, as they had in connection with their preliminary objection (see paragraphs 41-45 above) that there were a number of effective remedies available. 90. For the applicant, the prosecutor ’ s decision not to open an investigation had effectively rendered it impossible for him to enforce his civil right to compensation (see paragraph 48 above). He submitted that, under Turkish law, civil proceedings could not be contemplated until the facts concerning the events had been established and the perpetrators identified by a criminal prosecution. Without this, civil proceedings had no prospect of success. In addition, he stated that the ability to seek compensation for torture would represent only one part of the measures necessary to provide redress; it would be unacceptable for a State to claim that it fulfilled its obligation simply by providing compensation, since this would in effect be to allow States to pay for the right to torture. He claimed that the remedies necessary to meet his Convention claims either did not exist, even in theory, or did not operate effectively in practice (see paragraphs 46-47 above). 91. The Commission found a violation of Article 6 para. 1 (art. 6-1), for the same reasons that it found in the applicant ’ s favour under Article 26 of the Convention (art. 26) (see paragraph 50 above). In view of this finding, it did not consider it necessary to examine the complaint under Article 13 (art. 13). 1. Article 6 para. 1 of the Convention (art. 6-1) 92. The Court recalls that Article 6 para. 1 (art. 6-1) embodies the "right to a court", of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect (see, for example, the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, para. 80). There can be no doubt that Article 6 para. 1 (art. 6-1) applies to a civil claim for compensation in respect of ill ‑ treatment allegedly committed by agents of the State (see, for example, the Tomasi judgment cited at paragraph 61 above, p. 43, paras. 121-22). 93. The Court notes that it was not disputed by the applicant that he could in theory have brought civil proceedings for damages in respect of his ill-treatment. He did claim that the failure of the prosecutor to mount a criminal investigation in practice meant that he would have had no chance of success in civil proceedings (see paragraph 90 above). The Court recalls, however, that because of the special circumstances which existed in his case (see paragraph 57 above), Mr Aksoy did not even attempt to make an application before the civil courts. Given these facts, it is not possible for the Court to determine whether or not the Turkish civil courts would have been able to deal with Mr Aksoy ’ s claim, had he brought it before them. In any event, the Court observes that the crux of the applicant ’ s complaint concerned the prosecutor ’ s failure to mount a criminal investigation (see paragraph 90 above). It further notes the applicant ’ s argument that the possibility of seeking compensation for torture would represent only one part of the measures necessary to provide redress (also in paragraph 90 above). 94. In the Court ’ s view, against this background, it is more appropriate to consider this complaint in relation to the more general obligation on States under Article 13 (art. 13) to provide an effective remedy in respect of violations of the Convention. 2. Article 13 of the Convention (art. 13) 95. The Court observes that Article 13 (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see the Chahal judgment cited at paragraph 62 above, pp. 1869-70, para. 145). The scope of the obligation under Article 13 (art. 13) varies depending on the nature of the applicant ’ s complaint under the Convention (see the above-mentioned Chahal judgment, pp. 1870-71, paras. 150-51). Nevertheless, the remedy required by Article 13 (art. 13) must be "effective" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State. 96. The Court would first make it clear that its finding (in paragraph 57 above) that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies should not be taken as meaning that remedies are ineffective in South-East Turkey (see, mutatis mutandis, the Akdivar and Others judgment cited at paragraph 38 above, pp. 1213-14, para. 77). 97. Secondly, the Court, like the Commission, would take judicial notice of the fact that allegations of torture in police custody are extremely difficult for the victim to substantiate if he has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence. Furthermore, having been ill-treated in this way, an individual will often have had his capacity or will to pursue a complaint impaired. 98. The nature of the right safeguarded under Article 3 of the Convention (art. 3) has implications for Article 13 (art. 13). Given the fundamental importance of the prohibition of torture (see paragraph 62 above) and the especially vulnerable position of torture victims, Article 13 (art. 13) imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture. Accordingly, as regards Article 13 (art. 13), where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an "effective remedy" entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which imposes a duty to proceed to a "prompt and impartial" investigation whenever there is a reasonable ground to believe that an act of torture has been committed. However, in the Court ’ s view, such a requirement is implicit in the notion of an "effective remedy" under Article 13 (art. 13) (see, mutatis mutandis, the Soering judgment cited at paragraph 62 above, pp. 34-35, para. 88). 99. Indeed, under Turkish law the prosecutor was under a duty to carry out an investigation. However, and whether or not Mr Aksoy made an explicit complaint to him, he ignored the visible evidence before him that the latter had been tortured (see paragraph 56 above) and no investigation took place. No evidence has been adduced before the Court to show that any other action was taken, despite the prosecutor ’ s awareness of the applicant ’ s injuries. Moreover, in the Court ’ s view, in the circumstances of Mr Aksoy ’ s case, such an attitude from a State official under a duty to investigate criminal offences was tantamount to undermining the effectiveness of any other remedies that may have existed. 100. Accordingly, in view in particular of the lack of any investigation, the Court finds that the applicant was denied an effective remedy in respect of his allegation of torture. In conclusion, there has been a violation of Article 13 of the Convention (art. 13). D. Alleged violation of Article 25 para. 1 of the Convention (art. 25-1) 101. The applicant alleged that there had been an interference with his right of individual petition, in breach of Article 25 para. 1 of the Convention (art. 25-1), which states: "The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right." 102. It is to be recalled that Mr Aksoy was killed on 16 April 1994; according to his representatives, this was a direct result of his persisting with his application to the Commission. It was alleged that he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994 (see paragraph 22 above). 103. The Government, however, denied that there had been any interference with the right of individual petition. They submitted that Mr Aksoy had been killed in a settling of scores between quarrelling PKK factions and told the Court that a suspect had been charged with his murder (see paragraph 22 above). 104. The Commission was deeply concerned by Mr Aksoy ’ s death and the allegation that it was connected to his application to Strasbourg. Nonetheless, it did not have any evidence on which to form a conclusion as to the truth of this claim or the responsibility for the killing. 105. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 25 of the Convention (art. 25) that applicants or potential applicants are able to communicate freely with the Commission without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1219, para. 105). 106. That being so, in the present case the Commission was unable to find any evidence to show that Mr Aksoy ’ s death was connected with his application, or that the State authorities had been responsible for any interference, in the form of threats or intimidation, with his rights under Article 25 para. 1 (art. 25-1), and no new evidence in this connection was presented to the Court. The Court cannot therefore find that there has been a violation of Article 25 para. 1 of the Convention (art. 25-1). E. Alleged administrative practice of violating the Convention 107. The applicant additionally asked the Court to rule that Articles 3, 5 para. 3, 6 para. 1, 13 and 25 para. 1 (art. 3, art. 5-3, art. 6-1, art. 13, art. 25 ‑ 1) were violated as a matter of practice in South-East Turkey, with high ‑ level official tolerance. This entailed that the Court should find aggravated violations of the Convention. 108. With reference to the reports of the international bodies cited above (paragraph 46), he argued that torture at the hands of the police was widespread in Turkey and that this had been the case for many years. The State authorities were aware of the problem but had chosen not to implement recommended safeguards. Furthermore, the victims of torture and of other human rights abuses were routinely denied access to judicial remedies in breach of Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13) and were harassed, threatened and subjected to violence if they attempted to bring their complaints before the Strasbourg organs, contrary to Article 25 para. 1 (art. 25-1). Finally, since the domestic law permitted suspects to be detained for long periods in violation of Article 5 para. 3 (art. 5-3), this was evidence of an administrative practice of breaching that provision (art. 5-3). 109. The Court is of the view that the evidence established by the Commission is insufficient to allow it to reach a conclusion concerning the existence of any administrative practice of the violation of the above Articles of the Convention (art. 3, art. 5-3, art. 6-1, art. 13, art. 25-1). IV. Application of Article 50 of the Convention (art. 50) 110. Under Article 50 of the Convention (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 111. In his memorial the applicant claimed compensation for pecuniary damage caused by his detention and torture, consisting of medical expenses of 16,635,000 Turkish liras and loss of earnings amounting to £40 (sterling). In addition he sought non-pecuniary damages of £25,000, which, he submitted, should be increased by a further £25,000 in the event that the Court found an aggravated violation of the Convention on the grounds of administrative practice. He also requested payment of his legal fees and expenses which totalled £20,710. 112. The Government offered no comment either in its memorial or during the hearing before the Court as regards these claims. A. Damage 113. In view of the extremely serious violations of the Convention suffered by Mr Zeki Aksoy and the anxiety and distress that these undoubtedly caused to his father, who has continued with the application after his son ’ s death (see paragraph 3 above), the Court has decided to award the full amounts of compensation sought as regards pecuniary and non ‑ pecuniary damage. In total this amounts to 4,283,450,000 (four thousand two hundred and eighty-three million, four hundred and fifty thousand) Turkish liras (based on the rate of exchange applicable on the date of adoption of the present judgment). B. Costs and expenses 114. The Court considers that the applicant ’ s claim for costs and expenses is reasonable and awards it in full, less the amounts received by way of legal aid from the Council of Europe which have not already been taken into account in the claim. C. Default interest 115. With regard to the sum awarded in Turkish liras, default interest is to be payable at the rate of 30% per annum, which, according to the information available to the Court, is the statutory rate of interest applicable in Turkey at the date of adoption of the present judgment. As the award in respect of costs and expenses is to be made in pounds sterling, the Court considers it appropriate that interest should be payable on this sum at the rate of 8% per annum, which, according to the information available to it, is the statutory rate applicable in England and Wales at the date of adoption of the present judgment. | As regards the duration of detention without supervision, the Court observed that the Turkish Government had not adduced any detailed reasons before the Court as to why the fight against terrorism in South-East Turkey rendered judicial intervention impracticable. While the Court took the view that the investigation of terrorist offences undoubtedly presented the authorities with special problems, it could not accept that it was necessary to hold a suspect for fourteen days without judicial intervention. This period was exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture. As to the safeguards afforded by the Turkish legal system, the Court took account of the unquestionably serious problem of terrorism in South-East Turkey and the difficulties faced by the State in taking effective measures against it. However, it was not persuaded that the exigencies of the situation necessitated the holding of the applicant on suspicion of involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer. |
854 | Interception of communications, phone tapping and secret surveillance | II. RELEVANT DOMESTIC LAW AND PRACTICE 14. By section 1 (1) of the 1985 Act, anyone who intentionally intercepts a communication in the course of its transmission by means of a public communications system is guilty of a criminal offence, unless the interception is carried out pursuant to a warrant issued in compliance with the Act. 15. At the time of the applicant’s trial there was no provision in British law governing the interception of communications on a private system. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 16. The applicant complained that the interception by the police of messages on his pager violated Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” He submitted that the police action amounted to an interference with his private life and correspondence, which was not “in accordance with the law” or “necessary in a democratic society”. 17. The Government conceded that the interception by the police of messages sent to the applicant’s pager was inconsistent with Article 8 in that it was not “in accordance with the law”, although they added that this should not be taken as a concession that the action was not justified in the circumstances. 18. The Court notes that it is not disputed that the surveillance carried out by the police in the present case amounted to an interference with the applicant’s rights under Article 8 § 1 of the Convention. It recalls that the phrase “in accordance with the law” not only requires compliance with domestic law but also relates to the quality of that law, requiring it to be compatible with the rule of law. In the context of covert surveillance by public authorities, in this instance the police, domestic law must provide protection against arbitrary interference with an individual’s right under Article 8. Moreover, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to such covert measures (see Khan v. the United Kingdom, no. 35394/97, § 26, ECHR 2000-V). 19. At the time of the events in the present case there existed no statutory system to regulate the interception of pager messages transmitted via a private telecommunication system. It follows, as indeed the Government have accepted, that the interference was not “in accordance with the law”. There has, accordingly, been a violation of Article 8. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 20. The applicant also contended there was no remedy available to him at national level in respect of his Article 8 complaint, contrary to Article 13, which provides: “Everyone whose rights and freedoms as set forth in [this] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” He relied on the above-mentioned Khan judgment as authority for the position that section 78 of the Police and Criminal Evidence Act 1985 (“PACE”), which allows the trial judge to exclude evidence in certain circumstances, could not provide an effective remedy to deal with all aspects of his complaint about unlawful surveillance. 21. The Government alleged that there had been no violation of the applicant’s Article 13 rights, submitting that under section 78 of PACE the judge could have regard to Article 8 of the Convention when exercising his discretion to exclude evidence from trial proceedings. However, it did not appear that the applicant had ever submitted during his trial that the intercepted messages should be excluded from the evidence under section 78 on the basis that they had been obtained in breach of Article 8, and added that in the circumstances it cannot be said that such a submission would necessarily have failed. In this way, the Government claimed that the present case was distinguishable from the above-mentioned Khan case. 22. The Court recalls that Article 13 guarantees the availability of a remedy at national level to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Thus, its effect is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, without, however, requiring incorporation of the Convention (see the above-mentioned Khan judgment, § 44). 23. The Court recalls its finding in the Khan judgment that, in circumstances similar to those of the applicant, the courts in the criminal proceedings were not capable of providing a remedy because, although they could consider questions of the fairness of admitting the evidence in the criminal proceedings, it was not open to them to deal with the substance of the Convention complaint that the interference with the applicant’s right to respect for his private life was not “in accordance with the law”; still less was it open to them to grant appropriate relief in connection with the complaint (ibid.). 24. It does not appear that there was any other effective remedy available to the applicant for his Convention complaint, and it follows that there has been a violation of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non-pecuniary damage 26. The applicant claimed non-pecuniary damage for the invasion of his privacy. He drew attention to the facts that the interceptions took place over a long period of time (August 1995-January 1996) and were indiscriminate, in that every message on his pager was copied. He pointed out, furthermore, that since the Malone v. the United Kingdom judgment of 2 August 1984 (Series A no. 95), the Government had been aware of the need to regulate covert surveillance by the police. 27. The Government submitted that a finding of violation would constitute ample just satisfaction, since there was no evidence to suggest that, had proper procedures been in place at the relevant time, as they now were, the interceptions in question would not have been authorised. 28. The Court recalls that the violations it has found in this case relate to the fact that the interceptions by the police were not properly controlled by law. It considers that the findings of violation constitute sufficient just satisfaction for any non-pecuniary loss caused to the applicant by this failure. B. Costs and expenses 29. The applicant claimed legal costs and expenses as follows: GBP 918.00, exclusive of value added tax (“VAT”), for his solicitors, and the fees of two counsel, amounting to GBP 2,680.00 and GBP 3348.20, both exclusive of VAT. 30. The Government considered that the sums claimed were excessive, given that the application had not progressed beyond the written stage, that the Article 6 § 1 complaint was declared inadmissible on 27 June 2000 and that the Article 8 complaint did not raise any new issues not already established in the Court’s case-law. The Government questioned whether it had been necessary to have engaged both leading and junior counsel to work on the case in addition to a solicitor, and whether it had been necessary for both barristers and the solicitor to visit the applicant in prison at a total cost of nearly GBP 4,700.00. The Government suggested that GBP 1,500, plus VAT, would be a reasonable sum. 31. The Court recalls that it will award legal costs and expenses only if satisfied that these were necessarily incurred and reasonable as to quantum. It agrees with the Government that this was a straightforward case, raising virtually identical issues to the above-mentioned Khan judgment. It awards EUR 4,800 in respect of costs and expenses, plus any VAT that may be payable. C. Default interest 32. The Court considers that the default interest should be fixed at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points. | The Court held there had been a violation of Article 8 of the Convention. Noting in particular that, at the time of the events in question, there was no statutory system to regulate the interception of pager messages transmitted via a private telecommunication system, it found, as the UK Government had accepted, that the interference was not in accordance with the law. |
682 | Disclosure of personal data | RELEVANT legal framework and practice Domestic LawCivil Code ( Allgemeines Bürgerliches Gesetzbuch, published in the Collection of Judicial Acts, no. 946/1811) Civil Code ( Allgemeines Bürgerliches Gesetzbuch, published in the Collection of Judicial Acts, no. 946/1811) Civil Code ( Allgemeines Bürgerliches Gesetzbuch, published in the Collection of Judicial Acts, no. 946/1811) 34. Article 1330 of the Civil Code, as in force since 1 January 1916 (published in Imperial Law Gazette no. 69/1916), provides as follows: “1. Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation. 2. The same shall apply if anyone disseminates allegations that jeopardise a person’s reputation, income or livelihood, the falsity ( Unwahrheit ) of which was known or should have been known to him or her. [Such a person] also has a right to request a retraction and the publication thereof ...” Media Act ( Mediengesetz, published in Federal Law Gazette no. 314/1981) 35. Section 31(1) and (2) of the Media Act, as amended, in force since 1 January 2008 (published in Federal Law Gazette no. 112/2007), state as follows: “(1) Media owners, editors, copy editors and employees of a media company or media service have the right to refuse, as witnesses in criminal proceedings or other proceedings before a court or an administrative authority, to answer questions relating to the identity of the author, sender or source of articles and documentation, or to any information that they have obtained in connection with their profession. (2) The right stipulated in paragraph (1) must not be bypassed – in particular by ordering the person enjoying this right to disclose: documents; printed matter; image, sound or data carriers; illustrations; or other representations of such contents, or by confiscating them.” E-Commerce Act ( E-Commerce Gesetz, published in Federal Law Gazette no. 152/2001) 36. Section 16(1) of the E-Commerce Act reads as follows: “(1) A service provider who stores information provided by a user is not liable for the information stored at the request of that user, on condition that: 1. the provider does not have actual knowledge of any illegal activity or [illegal] information and, as regards claims for damages, is not aware of facts or circumstances from which any illegal activity or information is apparent; or 2. the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to [such] information.” 37. Section 18(4) of the E-Commerce Act provides as follows: “(4) Service providers mentioned in section 16 must transmit the name and address of a user of their service, with whom they have concluded agreements concerning the storage of information, to third parties at the request [of those third parties] if they demonstrate ( glaubhaft machen ) an overriding legal interest in determining the identity of [that] user and [establishing the existence of] a particular illegal situation, and furthermore demonstrate that knowledge of such information constitutes a material prerequisite for legal prosecution.” Enforcement Act ( Exekutionsordnung, published in Federal Law Gazette no. 79/1896, as amended in Federal Law Gazette no. 86/2021) 38. Section 354 of the Enforcement Act reads as follows: “(1) A claim to an act ( Anspruch auf eine Handlung ) which cannot be performed by a third party and the performance of which depends exclusively on the will of the obligor shall be enforced by the execution court upon application by way of fines or by imprisonment for a maximum total period of up to six months. (2) Execution shall begin by notice being served that a penalty will be imposed in the event of default; initially, only notice of a potential fine may be served. [Should] the time-limit ... for the performance of the act [in question] expire, the threatened coercive measure shall be enforced at the request of the enforcing creditor and, at the same time, notice of increasingly severe coercive measures shall be served, with the setting of a new time-limit in respect of the performance [of the act in question]. Enforcement of the latter shall only take place at the request of the enforcing creditor”. Domestic Practice 39. Regarding service providers’ duty under section 18(4) of the E ‑ Commerce Act (see paragraph 37 above) to disclose user data, the Supreme Court has established in its case-law that for a plaintiff to demonstrate an overriding legal interest it is sufficient that it is not possible to rule out the possibility of a finding of liability under Article 1330 of the Civil Code (see paragraph 34 above) on the basis of the contested allegations. Any distinction between a statement of facts and a potentially excessive value judgment has to be determined in proceedings against the actual author of the comments in question and not in proceedings against the relevant service provider (see Supreme Court judgments of 23 January 2014, 6 Ob 133/13 x; of 30 January 2017, 6 Ob 188/16 i; and, more recently, of 27 November 2019, 6 Ob 156/19 p). RELEVANT International INSTRUMENTS 40. Relevant material concerning freedom of communication on the Internet and its limits referenced in the instruments of the Council of Europe, the United Nations (UN) and the European Union is outlined in paragraphs 44-57 of the judgment in Delfi AS v. Estonia ([GC], no. 64569/09, ECHR 2015). The quoted material contains, inter alia, the Declaration on freedom of communication on the Internet adopted by the Committee of Ministers of the Council of Europe on 28 May 2003 (ibid., § 44) which identifies the principle of anonymity in the field of communication on the Internet and states as follows: “Principle 7: Anonymity In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements in the fields of justice and the police." 41. The relevant material quoted in Delfi AS v. Estonia further contains the Recommendation CM/Rec(2011)7 of the Committee of Ministers to member States on the new notion of media which underlines the importance of the role of intermediaries (ibid., § 46), the report of the UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression dated 22 May 2015 (A/HRC/29/32) which states that no State should use or force intermediaries to undertake censorship on its behalf (ibid., § 48) and relevant parts of the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) on the liability of intermediaries (ibid., § 50). 42. In addition, the Directive on electronic commerce provides as follows: “(9) The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression. ... (14) ... the implementation and application of this Directive should be made in full compliance with the principles relating to the protection of personal data, in particular as regards unsolicited commercial communication and the liability of intermediaries; this Directive cannot prevent the anonymous use of open networks such as the Internet. ... (41) This Directive strikes a balance between the different interests at stake and establishes principles upon which industry agreements and standards can be based. ... (52) The effective exercise of the freedoms of the internal market makes it necessary to guarantee victims effective access to means of settling disputes; damage which may arise in connection with information society services is characterised both by its rapidity and by its geographical extent; in view of this specific character and the need to ensure that national authorities do not endanger the mutual confidence which they should have in one another, this Directive requests Member States to ensure that appropriate court actions are available; Member States should examine the need to provide access to judicial procedures by appropriate electronic means.” 43. The Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users, adopted on 16 April 2014, stated the following: “Freedom of expression and information You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means: 1. you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. ... 2. restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight. ... 6. you may choose not to disclose your identity online, for instance by using a pseudonym. However, you should be aware that measures can be taken, by national authorities, which might lead to your identity being revealed.” 44. The European Parliament resolution of 21 May 2013 on the EU Charter: standard settings for media freedom across the EU (2011/2246/INI)) stresses the following: “28. ... that the fundamental right to freedom of expression and freedom of the media is not only reserved for traditional media, but also covers social media and other forms of new media; underlines the importance of ensuring freedom of expression and information on the internet, notably through guaranteeing net neutrality, and consequently calls on the EU and the Member States to ensure that these rights and freedoms are fully respected on the internet in relation to the unrestricted access to and provision and circulation of information; ...” 45. The Council of Europe’s Appendix to Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of Internet intermediaries (adopted on 7 March 2018) reads as follows, in so far as relevant: “2.4. Use of personal data 2.4.1. Intermediaries should not disclose personal data to a third party unless required by law or requested to do so by a judicial authority or other independent administrative authority whose decisions are subject to judicial review that has determined that the disclosure is consistent with applicable laws and standards, necessary in a democratic society and proportionate to the legitimate aim pursued. ...” 46. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 22 May 2015 to the Human Rights Council (A/HRC/29/32): “60. States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression. Blanket prohibitions fail to be necessary and proportionate. ... States should refrain from making the identification of users a condition for access to digital communications and online services and requiring SIM card registration for mobile users. Corporate actors should likewise consider their own policies that restrict encryption and anonymity (including through the use of pseudonyms). Court-ordered decryption, subject to domestic and international law, may only be permissible when it results from transparent and publicly accessible laws applied solely on a targeted, case-by-case basis to individuals ... and subject to judicial warrant and the protection of due process rights of individuals.” 47. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 11 May 2016 to the Human Rights Council (A/HRC/32/38): “85. States bear a primary responsibility to protect and respect the right to exercise freedom of opinion and expression. In the information and communication technology context, this means that States must not require or otherwise pressure the private sector to take steps that unnecessarily or disproportionately interfere with freedom of expression, whether through laws, policies, or extra-legal means. Any demands, requests and other measures to take down digital content or access customer information must be based on validly enacted law, subject to external and independent oversight, and demonstrate a necessary and proportionate means of achieving one or more aims under article 19 (3) of the International Covenant on Civil and Political Rights. ...” 48. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 30 March 2017 to the Human Rights Council (A/HRC/35/22): “78. It is also critical for the Council and States to draw the connections between privacy interference and freedom of expression. ... But certain interferences – such as overbroad requests for user data and third-party retention of such data – can have both near- and long-term deterrent effects on expression, and should be avoided as a matter of law and policy. At a minimum, States should ensure that surveillance is authorized by an independent, impartial and competent judicial authority certifying that the request is necessary and proportionate to protect a legitimate aim.” THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 49. The applicant company complained that being ordered to disclose the data of users who had posted comments on its Internet news portal had infringed its freedom of expression, as provided by Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility 50. The Government argued that the application should be rejected for being manifestly ill-founded, pursuant to Article 35 § 3 (a) and § 4 of the Convention. 51. The applicant company submitted that the application was admissible. 52. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination on the merits. The Court therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that the Government’s objection must be dismissed. It also notes that the application is not inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant company 53. The applicant company argued that the user data in question constituted journalistic sources. They were thus protected by editorial confidentiality in the same way as were data of authors of readers’ letters published in a newspaper. It furthermore complained about the domestic courts characterising the user comments as possibly defamatory under Article 1330 of the Civil Code (see paragraph 34 above), arguing that, on the contrary, they in fact constituted permissible value judgments. 54. Authors of postings in online discussion forums, just as authors of readers’ letters, had to be able to rely on their protection by media owners, as ensured by editorial confidentiality. Otherwise, they could be deterred from assisting the press in informing the public about matters of general interest. At the very least, users would adjust their behaviour by limiting their exercise of the right to open discussion in a way that would be at odds with the kind of free culture of discussion protected by Article 10. The applicant company’s media operations had earned an excellent reputation for offering critical and reflective media coverage. That reputation would without a doubt be negatively affected by an absence of statements on its platform caused by a “chilling effect”. 55. Owing to the difficult legal situation, operators of online discussion forums might limit or even shut down those forums for good. Thus, not only the author of the comment, but also the applicant company and the public had a legitimate interest in protecting the identity of people who posted such comments. 56. The domestic courts had forced the applicant company into the “corset” of a host provider with regard to user comments, without taking into consideration its obligation as a media company to exercise due diligence when disclosing sensitive data. The Supreme Court’s view notwithstanding, the forum operated by the applicant company had been developed through significant investment and deployment of personnel, and had to be considered as one where some kind of action or review would be undertaken by specially trained employees (see paragraph 25 above), and where the right to editorial confidentiality was therefore legitimate. 57. Lastly, the Supreme Court had not considered the particular circumstances of users’ comments, such as whether the person affected by the posting in question was a public figure or whether a comment had been posted in the course of a political discussion. It had not carried out an appropriate balancing test as required by the Court’s case-law. (b) The Government 58. The Government stated that in the absence of a sufficient connection between the publication of the comments and the applicant company’s journalistic activities, the applicant company could not in the present case invoke its right to editorial confidentiality. The fact that a host provider filtered comments through a software program on the basis of keywords and subsequently manually reviewed those comments did not mean that the host provider’s activities were journalistic in nature, and nor did the fact that a review was conducted after the publication of such comments. The applicant company’s role as a host provider offering a discussion forum on its website differed from its role as a publisher of articles. As a publisher, the applicant company had to take full responsibility for its articles. As a host provider, on the other hand, it enjoyed the exemption from liability enshrined in section 16 of the E-Commerce Act (see paragraph 36 above). To counterbalance that privilege, the applicant company, as a host provider, had a duty to disclose certain data to persons who made credible an overriding legal interest. The aim of that duty was to enable persons whose rights had been violated (as a result of unlawful activity or information originating from a user unknown to them) to prosecute the offender. The applicant company could not at the same time invoke both the exemption of liability granted to host providers and the safeguards afforded to publishers with regard to their sources. 59. Moreover, the Supreme Court’s decision had not restricted the applicant company’s right to receive and impart information. The Supreme Court had not required the applicant company to delete the comments nor to pay compensation, and nor had it taken a final decision on the lawfulness of those comments. 60. Even assuming that there had been an interference with the applicant company’s rights under Article 10, that interference had been provided for by law and had been proportionate. The legal framework applied by the Supreme Court had struck a fair balance between opposing points of view and interests in respect of the question of fundamental rights and had fallen within the wide margin of appreciation afforded by the Court in this field. As a positive obligation under Article 8 of the Convention, the State had to provide instruments enabling an individual to effectively combat defamation and personal violations by other private persons. 61. Experience had shown that users’ anonymity on the Internet was often abused to defame individuals or to disseminate hatred. Such behaviour did not contribute to a meaningful public debate. It was rather a hindrance to it. Users’ anonymity contributed considerably to an “online disinhibition effect” which could deter other users who valued respectful communication. It had to be ensured that the legitimate interest in anonymity did not eventually reduce the pluralism of opinions and thus restrict freedom of expression. The third-party intervener 62. The Media Legal Defence Initiative (a non-governmental organisation based in the United Kingdom that provides legal support to journalists, bloggers and independent media) submitted that anonymity was of crucial importance to the right to freedom of expression online as people’s willingness to engage in debate on controversial subjects in the public sphere had always been linked to the possibility of doing so anonymously. The disclosure of journalistic sources and surveillance could have negative consequences for the right to freedom of expression, given a breach of the right to confidentiality of an individual in respect of his or her communications. The same applied to cases concerning the disclosure of anonymous user data. The Court’s assessment (a) Existence of an interference 63. The Government disputed that the applicant company’s right to enjoy freedom of the press, as guaranteed under Article 10 of the Convention, had been interfered with by the domestic courts’ decisions (see paragraphs 58–59 above). The Court will first examine whether there was in fact such an interference – either in the light of the need to protect journalistic sources or on other grounds. (i) General principles 64. The fundamental principles concerning freedom of expression and the protection of journalistic sources are well-established in the Court’s case-law (see Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, §§ 50 and 51, 14 September 2010; and Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports of Judgments and Decisions 1996 ‑ II). 65. Regarding journalistic sources, the Court’s understanding of the concept of a journalistic “source” is “any person who provides information to a journalist”; it understands the term “information identifying a source” to include, in so far as they are likely to lead to the identification of a source, both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” (see Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, § 86, 22 November 2012, and the cases cited therein). 66. In the case of Schweizerische Radio- und Fernsehgesellschaft and Others v. Switzerland ((dec.) no. 68995/13, § 71, 12 November 2019) the Court has provided an overview of its case-law regarding situations that are considered to constitute an interference with the right to freedom of expression under Article 10 of the Convention. Among other factors, a conviction or an order to pay damages in a situation that can have a limiting impact on the enjoyment of freedom of expression is seen to constitute an interference (ibid.). In Nordisk Film & TV A/S v. Denmark ((dec.), no. 40485/02, ECHR 2005 ‑ XIII) the Court held that the decision of the Danish Supreme Court to compel the applicant company to hand over unedited footage which could not be regarded as sources of journalistic information nevertheless constituted an interference within the meaning of Article 10 § 1 of the Convention. It found however that the degree of protection under Article 10 to be applied in that situation could not reach the same level as that afforded to journalists when it came to their right to keep their sources confidential. 67. The Court has previously ruled on cases concerning the liability of providers of online debate forums on which users had posted comments. In none of those cases was the interference with the rights of the provider under Article 10 called into question (see Delfi AS v. Estonia [GC], no. 64569/09, § 118, ECHR 2015; and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 45, 2 February 2016). In Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt (§ 61), the Court explicitly stated that the second applicant in that case, as a large news portal, provided a forum for the exercise of freedom of expression, thus enabling the public to impart information and ideas. Accordingly, the Court concluded that the second applicant’s conduct had to be assessed in the light of the principles applicable to the press. (ii) Application of the above principles to the present case 68. The Court notes at the outset that the instant case does not concern the liability as such of the applicant company but its duty as a host provider to disclose user data in certain circumstances, under section 18 of the E ‑ Commerce Act (see paragraph 37 above), despite its role as an editor of journalistic work. In this role, it runs a news portal which carries discussion forums and allows users to post comments relating to articles published by the applicant company (see paragraph 5 above). It thus uses these forums to participate in the dissemination of ideas with regard to topics of public interest (see paragraphs 73 and 78 below). The comments at issue in the instant case referred to two articles published by the applicant company (see paragraphs 13 and 18 above). 69. In this regard, during the domestic proceedings the applicant company relied on the argument that the authors of the comments in question constituted journalistic sources and that their identities were therefore protected. The domestic courts, on the other hand, concluded that owing to the fact that no kind of journalistic activity was involved, the applicant company could not invoke editorial confidentiality with respect to the user comments. In the Government’s view, the applicant company could not at the same time invoke both the exemption of liability granted to host providers and the safeguards afforded to publishers with regard to their sources (see paragraph 58 above). According to the Government, there had in any event been no interference with the right to receive and impart information, as the applicant company had not been held liable, and nor had it been obliged to delete any content (see paragraph 59 above). 70. The Court’s understanding of a journalistic “source” (see paragraph 65 above) is in line with the Recommendation on the right of journalists not to disclose their sources of information (which was adopted by the Committee of Ministers of the Council of Europe) and the definitions given in the Appendix thereto (cited in Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 44, 14 September 2010). According to the definitions set out in this Appendix, the term “information” means any statement of fact, opinion or idea in the form of text, sound and/or picture (ibid.). 71. In the instant case, the Court concludes that the comments posted on the forum by readers of the news portal, while constituting opinions and therefore information in the sense of the Recommendation, were clearly addressed to the public rather than to a journalist. This is sufficient for the Court to conclude that the comments’ authors could not be considered a source to a journalist. The Court therefore agrees with the Government that the applicant company could not rely on editorial confidentiality in the instant case. However, an interference with Article 10 may also occur in ways other than by ordering the disclosure of a journalistic source (see paragraph 66 above). 72. In the cases of Delfi AS and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt it was undisputed that the liability of providers of online debate forums interfered with their rights under Article 10 (see paragraph 67 above). In Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt (§ 25), the Hungarian Constitutional Court had applied the principles of freedom of the press to the applicants. The Court shared this view (see paragraph 67 above). The Court does not overlook the fact that in the case of Delfi AS it accepted the domestic courts’ classification of the applicant as a publisher (ibid., § 128), whereas in the instant case the domestic courts considered, in respect of the comments at issue, the applicant company to be a host provider (see paragraphs 24 and 30 above). However, whether there may be an interference with Article 10 cannot depend on the legal categorisation of a provider by the domestic courts. Rather, the Court finds that it must take into account the circumstances of the case as a whole. 73. While the Court accepts that the applicant company acted as a host provider with regard to the publication of the comments at issue, this was only one of its roles as a media company. It publishes a daily newspaper (and an online version thereof) and maintains a news portal on which it initiates conversations regarding its articles by inviting users to post comments (see paragraph 5 above). It does not only provide a forum for users but takes an active role in guiding them to write comments, describing those comments as an essential and valuable part of the news portal (see paragraph 7 above). User-generated content on the applicant company’s portal is at least partly moderated (see paragraphs 8-12 above). The Court finds that these activities are closely interlinked. This is supported by the fact that there is no separate editorial office for the portal, which is described as a platform for dialogue as a whole – including both articles and discussions on those articles (see paragraphs 5 and 7 above). It is thus apparent that the applicant company’s overall function is to further open discussion and to disseminate ideas with regard to topics of public interest, as protected by freedom of the press (see paragraph 68 above). 74. In the light of the Declaration on freedom of communication on the Internet adopted by the Committee of Ministers of the Council of Europe (see Delfi AS, cited above, § 44), which emphasises the principle of anonymity for Internet users in order to enhance the free expression of opinions, information and ideas (see also the UN Special Rapporteur’s report cited above in paragraph 46), the Court has no doubt that an obligation to disclose the data of authors of online comments could deter them from contributing to debate and therefore lead to a chilling effect among users posting in forums in general. This affects, indirectly, also the applicant company’s right as a media company to freedom of press. It invites users to comment on its articles in order to further discussion on its journalistic work (see paragraphs 5 and 65 above). To achieve this goal, it allows authors of comments to use usernames (see paragraph 7 above); upon registration, users are informed that their data will not be seen publicly and will only be disclosed if required by law (see paragraphs 6 and 7 above). The forums’ rules dictate that certain content is not accepted, and that comments are screened by a keyword system, may be subject to a manual review and will be deleted if they are not in line with the rules (see paragraphs 7-12 above). 75. The Court does not lose sight of the ease, scope and speed of the dissemination of information on the Internet, and the persistence of such information once disclosed, which may considerably aggravate the effects of unlawful speech compared to traditional media (see Delfi, cited above, § 147). It therefore agrees with the Government (see paragraph 61 above) that the Convention does not provide for an absolute right to anonymity on the Internet. 76. At the same time, the Court is mindful of the interest of Internet users in not disclosing their identity. Anonymity has long been a means of avoiding reprisals or unwanted attention. As such, it is capable of promoting the free flow of opinions, ideas and information in an important manner, including, notably, on the Internet (see Delfi, cited above, § 147). Thus, it can indirectly also serve the interests of a media company (see paragraph 74 above). 77. The Court observes that different degrees of anonymity are possible on the Internet. An Internet user may be anonymous to the wider public while being identifiable by a service provider through an account or contact data that may be either unverified or subject to some kind of verification. A service provider may also allow an extensive degree of anonymity for its users, in which case users are not required to identify themselves at all and they may only be traceable – to a limited extent – through the information retained by Internet access providers. The release of such information would usually require an injunction by the investigative or judicial authorities and would be subject to restrictive conditions. It may nevertheless be required in some cases in order to identify and prosecute perpetrators (see Delfi, cited above, § 148). 78. In the instant case, the applicant company, as a media company, awards its users a certain degree of anonymity not only in order to protect its freedom of the press but also to protect users’ private sphere and freedom of expression – rights all protected by Articles 8 and 10 of the Convention (see paragraphs 68 and 73 above). The Court observes that this anonymity would not be effective if the applicant company could not defend it by its own means. It would be difficult for users to defend their anonymity themselves should their identities have been disclosed to the civil courts. 79. The Government’s argument that no final decision on the lawfulness of the comments has been taken (see paragraph 59 in fine above) does not change the evaluation, as the interference lies in the lifting of anonymity and the effects thereof, irrespective of the outcome of any subsequent proceedings. Such an interference with the media company’s rights will weigh less heavily than the interference in a case in which the media company is held liable for the content of a particular comment by being fined or obliged to delete it. The weight of a given interference is however a matter to be examined in a proportionality test when balancing the interests at stake (see paragraphs 92-95 below). 80. The Court therefore finds that the domestic courts’ orders in the two sets of proceedings to disclose the requested user data constituted an interference with the applicant company’s right to enjoy freedom of the press under Article 10 § 1 of the Convention. Such interference will be incompatible with Article 10 § 2 of the Convention unless it is “prescribed by law”, pursues one or more legitimate aims and is “necessary in a democratic society” in order to achieve the aim concerned. (b) Lawfulness and legitimate aim 81. It was not disputed between the parties that the interference was prescribed by law (namely, by section 18(4) of the E-Commerce Act – see paragraph 37 above), nor that it served a legitimate aim (namely, the protection of the reputation and rights of others). (c) Necessary in a democratic society 82. It remains to be determined whether the impugned interference was “necessary in a democratic society”. (i) General principles 83. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As enshrined in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, for example, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 88, ECHR 2015 (extracts) and the cases cited therein). 84. The relevant principles concerning the balancing of interests when examining an interference with freedom of expression have been summarised as follows (see Delfi AS, cited above, §§ 138 and 139): “138. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other he right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG [ v. Germany [GC], no. 39954/08,] § 84[, 7 February 2012]). 139. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to Hachette Filipacchi Associés ( ICI PARIS ), no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013).” 85. The Court has identified a number of relevant criteria that must guide its assessment when balancing Article 8 and Article 10, of which particularly pertinent to the present case are: whether a contribution is made to a debate of public interest; the subject of the report in question; the prior conduct of the person concerned and how well he or she is known; the content, form and consequences of the publication in question; and the gravity of the penalty imposed on the journalists or publishers (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 109 to 113, ECHR 2012; and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 90 to 95, 7 February 2012). 86. In this regard, the Court reiterates, that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999 ‑ IV; Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V; and, more recently, Couderc and Hachette Filipacchi Associés, cited above, § 96). 87. As to the limits of acceptable criticism, the Court has repeatedly held that freedom of the press affords the public one of the best means of discovering and forming an opinion on the ideas and attitudes of political leaders. The limits of acceptable criticism are accordingly wider in respect of a politician than in respect of a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism (see, for example, Oberschlick v. Austria (no. 1), 23 May 1991, §§ 58-59, Series A no. 204; Lingens v. Austria, 8 July 1986, § 42, Series A no. 103; and, more recently, Couderc and Hachette Filipacchi Associés, cited above, § 121). 88. Moreover, the Court has clearly stated that speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10, by virtue of Article 17 of the Convention. The examples of such speech examined by the Court have included statements denying the Holocaust, justifying a pro-Nazi policy, linking all Muslims with a grave act of terrorism, or portraying the Jews as the source of evil in Russia (see Delfi AS, cited above, § 136 and the cases cited therein). (ii) Application of those principles to the present case 89. The instant case concerns the applicant company’s duty as a host provider to disclose personal data of its users, not its own civil (or criminal) liability for the users’ comments (see paragraph 68 above; compare and contrast Delfi, cited above, § 128). Moreover, the comments made about the plaintiffs (see paragraphs 14, 15 and 19 above) although offensive and lacking in respect, did not amount to hate speech or incitement to violence (see the case-law quoted in paragraph 88 above), nor were they otherwise clearly unlawful (compare and contrast Delfi, cited above, § 128). 90. The comments in question concerned two politicians and a political party, respectively, and were expressed in the context of a public debate on issues of legitimate public interest, namely the conduct of those politicians acting in their public capacities and their own comments published on the same news portal (see paragraphs 13 and 18 above). 91. Although anonymity on the Internet is an important value (see paragraphs 76-78 above), the Court is aware that it must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others (see K.U. v. Finland, no. 2872/02, § 49, ECHR 2008). 92. The importance of a sufficient balancing of interests arises from this awareness, in particular if political speech and debates of public interest are concerned. This issue is not only reflected in the Court’s longstanding case-law (see paragraphs 86-87 above), but also in the above mentioned international-law material concerning Internet intermediaries: the relevant documents of the Council of Europe and the United Nations Human Rights Council state that requests for the disclosure of user data must be necessary and proportionate to the legitimate aim pursued (see paragraphs 45-48 above). As the Government has pointed out (see paragraph 60 above), a potential victim of a defamatory statement must be awarded effective access to a court in order to assert his or her claims before that court. In the Court’s view this means that the domestic courts will have to examine the alleged claim and weigh – in accordance with their positive obligations under Articles 8 and 10 of the Convention – the conflicting interests at stake, before deciding whether the data relating to the author’s identity are to be disclosed. In the instant case, those conflicting interests do not only comprise the plaintiffs’ right to protect their reputation and the applicant company’s right to freedom of press, but also its role in protecting the personal data of the comment’s authors and the freedom to express their opinions publicly (see paragraph 78 above). 93. The Court agrees with the appeal courts that the comments in questions could be understood as seriously offensive. However, while the first-instance courts in both sets of proceedings did conduct a balancing test (see paragraphs 24 and 30 above), the appeal courts and the Supreme Court did not give any reasons why the plaintiffs’ interests in the disclosure of the data were “overriding” the applicant company’s interests in protecting their authors’ anonymity. This is of particular concern in a case like the present one where the comments could be characterised as political speech that could not be considered as being clearly illegal. Referring to the Supreme Court’s case-law they only argued that the balancing of interests was not a matter to be examined in proceedings against the relevant service provider, but rather should be carried out during proceedings against the author of the allegedly defamatory comments. According to the appeal courts and the Supreme Court, it was sufficient that “a layperson was capable of perceiving that a finding of liability under Article 1330 of the Civil Code could not be ruled out”. If that was the case, the person concerned would have an overriding interest in the disclosure of the user data (see paragraphs 25-26, 27, 31-32 and 39 above). They thus concluded directly from the refusal of editorial confidentiality, the comments’ offensive nature and the requirement that a finding of liability could not be ruled out to the applicant company’s duty to disclose the data. 94. The Court finds that the Supreme Court’s case-law does not preclude a balancing of interests. In fact, this case-law would have provided for a certain balancing between the opposing interests in respect of fundamental rights when requiring an assessment whether a finding of liability under Article 1330 of the Civil Code could not be ruled out. This applied all the more to the instant case, as it was obvious that the comments at issue were part of a political debate. However, the appeal courts and the Supreme Courts did not base their assessment on any balancing between the interests of the authors of the particular comments and of the applicant company to protect those authors, respectively, on the one side, and the interests of the plaintiffs concerned on the other side. 95. As stated above (see paragraphs 68 and 89), the Court does not overlook that the instant case did not concern the applicant company’s liability for the comments (by contrast, see Delfi AS, cited above, § 142; and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt, cited above, § 71). In this regard, the Court accepts that for a balancing exercise in proceedings concerning the disclosure of user data, a prima facie examination may suffice (see paragraph 66 above). In fact, section 18(4) of the E-Commerce Act (see paragraph 37 above) allows for the establishment of prima facie evidence. This was not disputed by the Government (see paragraph 58 above). Furthermore, the courts enjoy a certain margin of appreciation, even if it is narrow when political speech is concerned (see paragraph 86 above). However, even a prima facie examination requires some reasoning and balancing. In the instant case, the lack of any balancing between the opposing interests (see paragraph 94 above) overlooks the function of anonymity as a means of avoiding reprisals or unwanted attention and thus the role of anonymity in promoting the free flow of opinions, ideas and information, in particular if political speech is concerned which is not hate speech or otherwise clearly unlawful. In view of the fact that no visible weight was given to these aspects, the Court cannot agree with the Government’s submission that the Supreme Court struck a fair balance between opposing interests in respect of the question of fundamental rights (see paragraph 60 above). 96. The Court finds that in the absence of any balancing of those interests the decisions of the appeal courts and of the Supreme Court were not supported by relevant and sufficient reasons to justify the interference. It follows that the interference was not in fact “necessary in a democratic society”, within the meaning of Article 10 § 2 of the Convention. 97. There has accordingly been a violation of Article 10 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 98. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 99. The applicant company claimed a total amount of 17,882.38 euros (EUR) in respect of pecuniary damage. This sum is composed of EUR 12,254.80 for the costs of legal representation (including VAT) and court fees, which it had to pay to K.S. and FPK in the first set of proceedings, and EUR 5,627.58 for the costs of legal representation (including VAT) and court fees, which it had to pay to H.K. in the second set of proceedings. 100. The Government did not contest this claim. 101. The applicant company also claimed EUR 6,000 in respect of non ‑ pecuniary damage. 102. The Government contested this claim, arguing that the applicant company had failed to set out the basis of its calculation and that the finding of a violation of a Convention right often constituted in itself sufficient reparation. 103. The Court reiterates that it cannot speculate what the outcome of the proceedings would be if they were in conformity with the requirements of Article 6 § 1 of the Convention (see Osinger v. Austria, no. 54645/00, § 57, 24 March 2005 and the references cited therein). The same applies in the instant case in which a procedural violation of Article 10 is found (see paragraph 96 above). Accordingly, the Court dismisses the applicant company’s claim for pecuniary damage. As regards the claim for non ‑ pecuniary damage, the Court finds that given the circumstances of the present case the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage the applicant company may have sustained (see, for example and mutatis mutandis, Vereinigung Bildender Künstler v. Austria, no. 68354/01, § 44, 25 January 2007). Costs and expenses 104. The applicant company claimed EUR 22,780.96 for the costs and expenses incurred before the domestic courts and EUR 4,894 for those incurred before the Court. These sums include VAT. 105. The Government considered these claims excessive and disputed the assertion that the procedural steps taken by the applicant company had been effective. The applicant company could not claim more than it would have been awarded had it been successful in the domestic proceedings. As regards the costs of the proceedings before the Court the Government argued that the applicant company had been able to rely in part on the written submissions presented in the domestic proceedings when preparing the submissions to the Court. 106. According to the Court’s case-law an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum (see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 58, 27 February 2007, and the cases cited therein). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 15,000 for costs and expenses incurred in the domestic proceedings and EUR 2,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant company. Default interest 107. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention in the present case, finding that the court orders in question had not been necessary in a democratic society. The Court found, in particular, that user data did not enjoy the protection of “journalistic sources”, and there was no absolute right to online anonymity. However, the domestic courts had not even balanced the interests of the plaintiffs with the interests of the applicant company in keeping its users anonymous so as to help promote the free exchange of ideas and information as covered by Article 10 of the Convention. |
802 | Right to liberty and security (Article 5 of the Convention) | RELEVANT LEGAL FRAMEWORK AND PRACTICE Criminal Code ( Strafgesetzbuch ) 26. Article 11 of the Criminal Code concerns capacity for criminal responsibility and reads, in so far as relevant, as follows: “A person who, at the time of the offence, is incapable of recognising the wrongfulness of his or her act or of acting on the basis of such recognition because of a mental illness, a mental disability, a profound disturbance of consciousness or another serious mental disorder equivalent to one of these conditions, does not act culpably.” 27. Article 15 concerns criminal liability for attempts and prescribes that penalties for intentional acts apply not only to the completed act but also to an attempt and any participation in an attempt. The act is attempted as soon as the perpetrator expresses his or her decision to carry it out or to induce another person to do so by an act immediately preceding the execution. 28. The confinement in an institution for mentally ill offenders as a preventive measure is dealt with in Article 21, the relevant parts of which read as follows: “(1) If a person commits an offence punishable with a term of imprisonment exceeding one year, and if the person cannot be punished for the sole reason that he or she committed the offence under the influence of a state of mind excluding responsibility (Article 11) resulting from a serious mental or emotional disorder, the court shall order his or her confinement in an institution for mentally ill offenders, if in view of his or her person, his or her condition and the nature of the offence it is to be feared that he or she will otherwise, under the influence of the mental or emotional disorder, commit a criminal offence with serious consequences. (2) If such a fear exists, an order for confinement in an institution for mentally ill offenders shall also be made in respect of a person who, while not lacking responsibility, commits an offence punishable by a term of imprisonment exceeding one year under the influence of his or her severe mental or emotional disorder. In such a case the confinement is to be ordered at the same time as the sentence is passed.” 29. Article 25 regulates the duration of preventive measures associated with deprivation of liberty and prescribes that these preventive measures are to be ordered for an indefinite period and enforced for as long as their purpose requires. The court must decide on the revocation of the preventive measure. Whether confinement in an institution for mentally ill offenders is still necessary must be reviewed by the court of its own motion at least once a year. 30. Article 146 defines the crime of fraud as being committed by a person who, with the intention of unlawfully enriching himself or herself or a third party through the conduct of the deceived person, induces a person by deception to perform an act, acquiesce in an act or omit to perform an act which damages the assets of the deceived person or another person. 31. Article 269 concerns the crime of resistance to State authority ( Widerstand gegen die Staatsgewalt ). It is placed in the chapter “Criminal offences against State authority” and reads, in so far as relevant, as follows: “(1) Any person who prevents an authority from performing an official act by force or by threat of force and any person who prevents an official from performing an official act by force or by a dangerous threat shall be liable to a custodial sentence not exceeding three years ... ... (3) An official act within the meaning of paragraph 1 ... shall only be deemed to be an act by which the official, as an organ of sovereign administration or jurisdiction, exercises a command or coercive power.” Code of Criminal Procedure ( Strafprozessordnung ) 32. Article 126 of the Code of Criminal Procedure concerns, among other matters, the experts who are to be appointed if special expertise is required for investigations or for taking evidence which is otherwise not available to the prosecution authorities. The experts appointed must be, above all, persons who are registered on the list of court experts ( Gerichtssach-verständigenliste ). If other persons are appointed, they must be informed in advance about their essential rights and duties. 33. Article 127 concerning expert opinions reads, in so far as relevant, as follows: “(2) Experts shall give their findings and expert opinion lege artis and according to the best of their knowledge and conscience. They shall obey summonses from the public prosecutor’s office and the court, and answer questions during trials, interviews and reconstructions of the criminal act. (3) If the findings are inconclusive or the expert opinion is contradictory or otherwise deficient, or if the statements of two experts on the facts observed by them or the conclusions drawn from their observations are significantly contradictory, and the concerns cannot be resolved by questioning them, a further expert shall be commissioned. If the case concerns the examination of psychological conditions and developments, an expert opinion shall be obtained from an expert with an authorisation to teach at a domestic or foreign university.” 34. Article 429 concerns the procedure for the confinement in an institution for mentally ill criminal offenders under Article 21 § 1 of the Criminal Code (see paragraph 28 above) and reads, in so far as relevant, as follows: “(1) If there are sufficient grounds for assuming that the requirements of Article 21 § 1 of the Criminal Code have been met, the public prosecutor’s office shall lodge an application for confinement in an institution for mentally ill criminal offenders ... ... (4) ... if the person concerned cannot remain at liberty without danger to himself or herself or others, or if medical observation is required, temporary detention in an institution for mentally ill criminal offenders or admission to a public hospital for mental illnesses shall be ordered ...” Act on Placement of Mentally Ill Persons in Hospitals (Hospitalisation Act) (Bundesgesetz über die Unterbringung psychisch Kranker in Krankenanstalten, Unterbringungsgesetz) 35. Section 3 of the Hospitalisation Act concerns the requirements for the placement of mentally ill persons in hospitals and psychiatric wards under civil and administrative law. It provides that the only persons who may be accommodated in such an institution are those who: (1) suffer from a mental illness, and in connection therewith seriously and substantially endanger their life or health or the life or health of others, and (2) cannot be adequately medically treated or cared for in another way, in particular outside a psychiatric ward. Reform of the system of preventive measures 36. In January 2015 a working group set up by the then Minister of Justice concerning a comprehensive reform of the system of preventive measures under the Criminal Code ( Maßnahmenvollzug ) submitted a report on the results achieved (see “Arbeitsgruppe Maßnahmenvollzug: Bericht an den Bundesminister für Justiz über die erzielten Ergebnisse”, BMJ ‑ V70301/0061 ‑ III 1/2014, January 2015). It aimed at fundamentally improving law and practice in the area of preventive measures, in particular the quality of the risk prognoses for mentally ill offenders in confinement. The report found that the number of persons held in such confinement had considerably increased in the past few years. Among various other flaws it found that there was a tendency towards admissions for offences with a lower risk potential. It considered that the best ‑ case scenario was to assume four “false positives” for one “true positive” person held in confinement and pointed at continued doubts about the consistent quality of expert opinions produced in the admission and discharge procedures, notably as regards the reliability of the risk prognoses, as attested by a previously commissioned study in 2011. The expert group therefore proposed, among many other things, that in the future, confinement should in principle be permitted for underlying offences which were punishable by more than three years’ imprisonment (with exceptions for cases of particularly high risk) and that there should be a direct causal relationship, specific to the serious mental illness, between the illness and the underlying offence. As a very important point it also made proposals with a view to improving the quality of expert opinions, notably by ensuring adequate remuneration of forensic psychiatric experts and by establishing (minimum) quality standards for their expert opinions and by promoting the range of qualification modules by the doctors’ association. 37. The Ministry of Justice subsequently produced first draft legislative amendments in 2017. The most recent proposals date from May 2021 and aim at reforming the system of preventive measures in a comprehensive manner, with proposals for amendments of the Criminal Code, the Code of Criminal Procedure and the Juvenile Justice Act. This new initiative was also triggered by recent judgments of the Court having found violations of the Convention in that area (see Kuttner v. Austria, no. 7997/08, 16 July 2015, and Lorenz v. Austria, no. 11537/11, 20 July 2017), the need to bring the law in line with the Court´s increased case ‑ law on Article 5 of the Convention and furthermore with the UN Convention on the Rights of Persons with Disabilities. The proposed amendments intend to strengthen the principle of proportionality in the confinement of mentally ill offenders, to improve the risk prognoses and to raise the quality standards of such confinement. Based on the finding that the confinement of approximately 40 per cent of the persons currently held in institutions for mentally ill offenders has been ordered on the basis of underlying offences of a minor character, a new threshold is proposed to include only those underlying offences which are punishable by more than three years’ imprisonment. An exception is proposed with regard to offenders who are particularly dangerous to the life, limb, sexual integrity or sexual self ‑ determination of others, in which case confinement will also be possible for offences punishable by one to three years’ imprisonment. THE LAW ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 38. The applicant complained that her confinement in an institution for mentally ill offenders by the judgment of 8 August 2017, confirmed on 27 June and 6 August 2018 (see paragraphs 19, 22 and 23 above), had not been necessary or proportionate and was therefore contrary to Article 5 § 1 of the Convention, the relevant parts of which read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;” Admissibility 39. The Court notes that the complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsSubmissions by the parties Submissions by the parties Submissions by the parties (a) The applicant 40. The applicant submitted that deprivation of liberty within the meaning of Article 5 § 1 (e) of the Convention was only permissible if it was necessary in accordance with the purpose of that measure, which in the present case was the protection of society from serious crimes by providing medical treatment for offenders with genuine mental illnesses, which could only be carried out on an inpatient basis. The criminal law penalties should be proportionate to the offence committed, otherwise the requirement of the proportionality of criminal law penalties with regard to the underlying offence would be violated. It would, for example, not be proportionate to impose a life sentence on someone for committing the offence of resistance to State authority. In the same vein, it would not be proportionate to order a person’s (potentially life ‑ long) confinement in an institution for mentally ill offenders, in particular in cases of minor and one ‑ off violence, as in the applicant’s case. The applicant argued that proportionality took on a particularly practical significance when determining the duration of deprivation of liberty. Even a deprivation of liberty that was in itself necessary, appropriate and initially reasonable might become disproportionate if it exceeded a certain duration. 41. The applicant further submitted that under Article 21 of the Criminal Code (see paragraph 28 above), the duration of the confinement was detached from the underlying offence and the courts only considered the question of dangerousness (if and for as long as the mentally ill offender was considered to be dangerous). The underlying offence only set the threshold for when a potentially life ‑ long confinement could be ordered, that is in the case of all offences, except property offences, which provided for the deprivation of liberty for more than one year. Domestic legislation did not, however, permit a proportionality analysis between the underlying offence and the duration of the confinement. It was consequently not in compliance with Article 5 § 1 (e) of the Convention, as it did not ensure that confinement only took place in those cases where the mental illness by its nature or extent might justify compulsory confinement. Domestic legislation also allowed for confinement if there was no high risk of serious violent or sexual offences being committed, which could be ascertained from concrete circumstances relating to the person or his or her behaviour. 42. In addition, the applicant maintained that Dr A.K., on whose expert opinion the Regional Court had mainly relied in its verdict (see paragraph 19 above), was not registered on the list of court experts, whereas the other two experts who had been consulted, Dr W.S. and Dr M.F. (see paragraphs 6 ‑ 7 and 9 and 11 ‑ 12 above), were on that list. The applicant was in particular insistent about the expert opinion of Dr W.S. who, according to her, had found that she did not present any danger of committing a serious crime (see paragraph 12 above). As regards the expert opinion provided by Dr A.K. almost eleven months after the offence at issue, reasonable doubts as to its correctness had been shown to exist, in particular because it contradicted the findings of Dr M.F. The Regional Court had failed to give sufficient reasons for its decision on why it had not followed Dr M.F.’s prognosis with regard to the applicant’s dangerousness, or for its conclusion that the applicant had posed a long-term threat, because the court had simply adopted the opinion of the expert whom it had appointed itself. The applicant also pointed out that besides the evening in question, there had never been another known incident in which she had been physically aggressive towards other persons. It was therefore incomprehensible, given the minor character of the offence at issue and the differing expert opinions, that no decisive expert opinion ( Obergutachten ) had been requested, as prescribed by Article 127 § 3 of the Code of Criminal Procedure (see paragraph 27 above). (b) The Government 43. The Government insisted that the requirements of subparagraph (e) of Article 5 § 1 of the Convention were met in the present case. The Regional Court had based its decision primarily, but not exclusively, on the expert opinion of Dr A.K. (see paragraph 16 above), who had a venia docendi and who had examined the applicant in person. Dr A.K. had scrutinised the expert opinion provided by Dr W.S. in the preliminary proceedings (see paragraphs 11 ‑ 12 above), attributing the differences in the findings to Dr W.S. only having carried out a rudimentary study of the applicant’s medical history and not having examined the applicant in person. Dr A.K. had further discussed her expert opinion during the trial, providing the court and the applicant with the opportunity to put questions to her. No concerns had emerged as regards her professional competence. It was also not relevant that she was no longer registered on the list of court experts, as the same rights and obligations were incumbent on her under Article 127 § 2 of the Code of Criminal Procedure (see paragraph 27 above). 44. Furthermore, the Regional Court had been able to gain a first-hand impression of the applicant’s mental state during the trial hearing and had not discerned any contradictions between those impressions and the expert opinion provided by Dr A.K., or other indications pointing to the incorrectness or any other deficiency in that opinion. The expert opinion provided by Dr M.F. during the placement proceedings (see paragraphs 6 ‑ 7 and 9 above) had been read out during the trial at the request of the applicant’s defence lawyer, and the Regional Court had taken note of it in its assessment of the evidence. Nor had any concerns as to the quality of Dr A.K.’s expert opinion been brought to light during the appeal proceedings. 45. As regards the question whether the kind or degree of the applicant’s mental illness had warranted compulsory confinement, the Government referred to the findings of the Regional Court concerning the applicant’s dangerousness, according to which it was highly likely that she would, without inpatient treatment, commit an offence with serious consequences under the influence of her mental illness, above all a punishable offence against life and limb. Furthermore, the Court of Appeal had commissioned a supplementary opinion from Dr A.K. which confirmed, in particular, that offences with serious consequences were highly likely to be committed in the future (see paragraph 24 above). 46. In addition, the Government argued that under Article 25 of the Criminal Code (see paragraph 29 above), preventive measures were to be implemented only for as long as their purpose required, and the necessity of continued confinement had to be reviewed by a court of its own motion at least once a year. The fact that the applicant was granted conditional release on 30 October 2020 (see paragraph 25 above) showed that the domestic courts had complied with Article 5 § 4 of the Convention when reviewing the need for the applicant’s continued confinement and concluding that at that moment in time she no longer presented a danger or at least not a danger warranting such measures. Lastly, the Government pointed out that the applicant had been placed in an institution specialising in mental and neurological disorders. The Court’s assessment (a) General principles established in the Court’s case-law 47. The Court reiterates that in order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his or her concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see, among many other authorities, De Tommaso v. Italy [GC], no. 43395/09, § 80, 23 February 2017). No deprivation of liberty will be lawful unless it falls within one of the permissible grounds specified in sub-paragraphs (a) to (f) of Article 5 § 1 (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 88, 15 December 2016). 48. As regards the deprivation of liberty of persons suffering from mental disorders, an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see, among many other authorities, Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 127, 4 December 2018; Rooman v. Belgium [GC], no. 18052/11, § 192, 31 January 2019; and Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, § 135, 1 June 2021). 49. In deciding whether an individual should be detained as a person “of unsound mind”, the national authorities are to be recognised as having a certain discretion, since it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Denis and Irvine, cited above, § 136). 50. As regards the first condition for a person to be deprived of his liberty as being of “unsound mind”, namely that a true mental disorder must have been established before a competent authority on the basis of objective medical expertise, the Court reiterates that, despite the fact that the national authorities have a certain discretion, in particular on the merits of clinical diagnoses, the permissible grounds for deprivation of liberty listed in Article 5 § 1 are to be interpreted narrowly. A mental condition has to be of a certain severity in order to be considered as a “true” mental disorder for the purposes of sub-paragraph (e) of Article 5 § 1, as it has to be so serious as to necessitate treatment in an institution for mental health patients (see Ilnseher, cited above, § 129, and Denis and Irvine, cited above, § 136). 51. No deprivation of liberty of a person considered to be of unsound mind may be deemed in conformity with Article 5 § 1 (e) of the Convention if it has been ordered without seeking the opinion of a medical expert. Any other approach falls short of the required protection against arbitrariness, inherent in Article 5 of the Convention (see Kadusic v. Switzerland, no. 43977/13, § 43, 9 January 2018, with further references). The particular form and procedure in this respect may vary depending on the circumstances. It may be acceptable, in urgent cases or where a person is arrested because of his violent behaviour, that such an opinion be obtained immediately after the arrest. In all other cases, a prior consultation is necessary. Where no other possibility exists, for instance owing to a refusal of the person concerned to appear for an examination, at least an assessment by a medical expert on the basis of the file must be sought, failing which it cannot be maintained that the person has reliably been shown to be of unsound mind (see Varbanov v. Bulgaria, no. 31365/96, § 47, ECHR 2000 ‑ X, and Constancia v. the Netherlands (dec.), no. 73560/12, § 26, 3 March 2015). 52. As for the requirements to be met by an “objective medical expertise”, the Court considers in general that the national authorities are better placed than itself to evaluate the qualifications of the medical expert in question. However, in certain specific cases, it has considered it necessary for the medical experts in question to have a specific qualification, and has in particular required the assessment to be carried out by a psychiatric expert where the person confined as being “of unsound mind” had no history of mental disorders, as well as, sometimes, the assessment to be made by an external expert (see Ilnseher, cited above, § 130, and the references therein). 53. Moreover, the objectivity of the medical expertise entails a requirement that it was sufficiently recent. The question whether the medical expertise was sufficiently recent depends on the specific circumstances of the case before it (ibid., § 131, and the references therein). 54. As regards the second requirement for an individual to be deprived of his liberty as being of “unsound mind”, namely that the mental disorder must be of a kind or degree warranting compulsory confinement, the Court reiterates that a mental disorder may be considered as being of a degree warranting compulsory confinement if it is found that the confinement of the person concerned is necessary because the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him from, for example, causing harm to himself or other persons (ibid., § 133; see also Stanev v. Bulgaria [GC], no. 36760/06, § 146, ECHR 2012). 55. The relevant time at which a person must be reliably established to be of unsound mind, for the requirements of sub ‑ paragraph (e) of Article 5 § 1, is the date of the adoption of the measure depriving that person of his liberty as a result of that condition. However, as shown by the third minimum condition for the detention of a person for being of unsound mind to be justified, namely that the validity of continued confinement must depend on the persistence of the mental disorder, changes, if any, to the mental condition of the detainee following the adoption of the detention order must be taken into account (see Denis and Irvine, cited above, § 137). 56. The Court reiterates that, in certain circumstances, the welfare of a person with mental disorders might be a further factor to take into account, in addition to medical evidence, in assessing whether it is necessary to place the person in an institution. However, the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty. The Court considers that any protective measure should reflect as far as possible the wishes of persons capable of expressing their will. Failure to seek their opinion could give rise to situations of abuse and hamper the exercise of the rights of vulnerable persons. Therefore, any measure taken without prior consultation of the interested person will, as a rule, require careful scrutiny (see N. v. Romania, no. 59152/08, § 146, 28 November 2017, and Stanev, cited above, § 153). 57. Furthermore, it is primarily for the domestic courts to assess the scientific quality of different psychiatric opinions and, in that respect, they have a certain margin of appreciation. When the national courts have examined all aspects of different expert reports on the necessity of an individual’s psychiatric internment, the Court will not intervene unless their findings are arbitrary or unscientific (see Hodžić v. Croatia, no. 28932/14, § 63, 4 April 2019, and Ruiz Rivera v. Switzerland, no. 8300/06, § 62, 18 February 2014). 58. Lastly, Article 5 § 1 (e) of the Convention does not specify the possible acts, punishable under criminal law, for which an individual may be detained as being “of unsound mind”, nor does that provision identify the commission of a previous offence as a precondition for detention (see Denis and Irvine, cited above, § 168). It allows compulsory confinement as a security measure, the purpose of which is preventive rather than punitive (ibid., § 141). (b) Application of the above principles to the present case 59. The Court notes at the outset that Article 5 of the Convention is applicable to the present case as the applicant has been deprived of her liberty (see paragraph 47 above). The Court further notes that the issue in dispute between the parties concerns the question whether the applicant’s confinement in an institution for mentally ill offenders as a preventive measure complied with Article 5 § 1 (e) of the Convention. 60. The applicant mainly contended that this measure was disproportionate to the underlying minor offence, and that there had been differing conclusions by the experts and therefore another, decisive, expert opinion had been called for. The Government disagreed, insisting that all relevant Convention requirements had been met in the present case. 61. The Court first observes that during the criminal proceedings initiated against the applicant, expert opinions were requested from two experts, Dr W.S. and Dr A.K., who concluded that the applicant suffered from a schizoaffective disorder (Dr W.S.) or undifferentiated schizophrenia (Dr A.K.) (see paragraphs 12, 16 and 24 above). Similarly, a third expert, Dr M.F., who was consulted during the two civil placement proceedings held in 2016 ‑ 2017, equally concluded, in the respective sets of proceedings that the applicant suffered from a schizoaffective disorder, or from “paranoid schizophrenia” (see paragraphs 7 and 9 above). All three experts consulted were medical specialists in psychiatry and neurology. Two of them, namely Dr A.K. and Dr M.F., reached their conclusions after conducting face-to-face examinations. All of the expert opinions were produced in 2016 and 2017, that is the period in which the underlying offence had been committed (2016) and criminal proceedings instituted against the applicant (2016 ‑ 2017), and therefore they were sufficiently recent in the circumstances of this case. Furthermore, the diagnoses of all three experts concluded with diagnosing a type of schizophrenic disorder, which is undoubtedly serious enough to be considered as a “true” mental disorder which may render treatment in an institution necessary. 62. As regards the applicant’s argument that Dr A.K., on whose expert opinion the Regional Court mainly relied in its verdict, was not registered on the list of court experts (see paragraph 42 above), the Court first reiterates that the national authorities are better placed than itself to evaluate the qualifications of the medical experts in question (see paragraph 52 above) and that it is primarily for the domestic courts to assess the scientific quality of different psychiatric opinions (see paragraph 57 above). Concerning the present case, the Court notes that Article 126 of the Code of Criminal Procedure does not require court-appointed experts to be mandatorily registered on the list of court experts (see paragraph 32 above). Article 126 provides that the experts appointed must be, above all, those who are registered on the list in question. However, it does not exclude the appointment as court experts of persons not registered on the list. Furthermore, all experts, whether or not registered on the list, are bound by the same rights and duties, notably the obligation to give their findings and expert opinion lege artis and according to the best of their knowledge and conscience, as provided in Article 127 § 2 of the Code of Criminal Procedure (see paragraph 27 above). The Court also notes in this context that Dr A.K. is a renowned expert with a university venia docendi and head of the Forensic Department of the Neuromed Campus of the University Clinic Linz. The applicant did not call into question her qualifications as an expert in the domestic proceedings. Furthermore, the Court observes that the applicant’s initial defence lawyer in fact objected to the use of the expert opinion by Dr W.S., who had concluded that the applicant had been criminally liable at the time of the offence, and requested to be permitted to produce evidence by obtaining another expert opinion with the aim of proving that, at the time of the offence, the applicant had lacked the capacity for criminal liability (see paragraph 14 above). In conclusion, the Court sees no reason to doubt that the applicant’s mental disorder was established on the basis of objective medical expertise. 63. Turning to the question of whether the applicant’s mental disorder was of a kind or degree warranting compulsory confinement, the Court reiterates that the Regional Court, in its decision ordering her confinement in an institution for mentally ill offenders, above all relied on the expert opinion provided by Dr A.K., and the latter’s assessment of the danger she represented to others (see paragraph 19 above). In this context, the Court considers it important to note that Dr A.K. was able to conduct a face-to-face examination of the applicant, whereas Dr W.S. could not, as the applicant did not obey a summons for her examination. Dr W.S. therefore had to base his expert opinion solely on the existing files, and concluded himself, contrary to the claim of the applicant (see paragraph 42 above), that he was not able to make any prognosis about any future offences with serious consequences (see paragraph 12 above). At the same time, Dr A.K.’s expert opinion was very detailed and stretched over twenty-nine pages. Furthermore, during the trial, Dr A.K. thoroughly discussed the expert opinion provided by Dr W.S., as well as those provided by Dr M.F. during the civil placement proceedings, all of which were read out, and she explained the differences between them (see paragraphs 16 and 18 above). 64. The Court further observes that the applicant was described as lacking awareness of the fact that she suffered from a disorder and as displaying a negative attitude towards treatment, and as sometimes also having refused to take medication in the past (see paragraphs 7, 9 and 16 above). These were all factors which were taken into consideration by the domestic courts when deciding on the applicant’s confinement as opposed to outpatient treatment. The Court is therefore satisfied that the applicant’s deprivation of liberty had been shown to have been necessary in the circumstances of her case. 65. As regards the question of the persistence of the mental disorder, verified by objective medical evidence, throughout the applicant’s confinement, the Court notes that her confinement was ordered by the Regional Court’s judgment of 8 August 2017 (see paragraph 19 above) on the basis of, above all, Dr A.K.’s expert opinion of 1 April 2017. Although, one year later, the Court of Appeal upheld the confinement order on 6 August 2018, it did not do so until it received a supplementary opinion to Dr A.K.’s expert opinion, precisely because of the lapse of time since the preparation of that expert opinion (see paragraph 24 above). Significantly, Dr A.K. conducted another face ‑ to ‑ face examination of the applicant and submitted her supplementary opinion on 30 July 2018, again concluding that the applicant still suffered from undifferentiated schizophrenia, and also maintaining her risk prognosis with regard to future offences with serious consequences. The Court is therefore satisfied that, when the Court of Appeal confirmed the initial confinement order, the persistence of the applicant’s mental disorder was reliably verified by objective medical evidence. In this context, the Court also observes that on 15 October 2020, that is slightly more than two years later, the same Regional Court ordered her conditional release from confinement (see paragraph 25 above). While no further details were provided to the Court on any possible expert opinions obtained in this context, it is noted that in accordance with Article 25 of the Criminal Code, preventive measures, including confinement in an institution for mentally ill offenders, are only to be enforced for as long as their purpose requires, and the continued necessity of such confinement must be reviewed by a court of its own motion at least once a year (see paragraph 29 above). 66. While the Court is mindful of the fact that the applicant was accused of attempted resistance to State authority, which the applicant considers an offence of a minor character and therefore not proportionate to the sanction of confinement as preventive measure imposed on her (see paragraph 40 above), it stresses that it has already held that Article 5 § 1 (e) of the Convention does not specify the possible acts, punishable under the criminal law, for which an individual may be detained as being “of unsound mind”, nor does that provision identify the commission of a previous offence as a precondition for detention (see paragraph 58 above; and see also Denis and Irvine, cited above, § 168). In other words, whether or not it was a minor offence is not decisive when examining the compliance of a person’s deprivation of liberty with Article 5 § 1 (e) of the Convention. Indeed, the authorities are not required to take into account the nature of the acts committed by the individual concerned which gave rise to his or her compulsory confinement (ibid., § 169). Nonetheless, the Court takes note of the currently ongoing discussion on a comprehensive reform of the system of preventive measures in Austria, in particular its aim to achieve compliance with the Court´s case-law, to strengthen the principle of proportionality in the system of preventive detention and to improve considerably the quality of the risk prognoses. This encompasses the aim of improving the quality of expert opinions produced in this context by, for example, establishing (minimum) quality standards for such expert opinions (see paragraphs 36–37 above). 67. In conclusion, the foregoing considerations are sufficient to enable the Court to consider that at the time of the decision ordering the applicant’s confinement in an institution for mentally ill offenders on 8 August 2017, she was reliably shown to be of unsound mind, that is, a true mental disorder had been established before a competent authority on the basis of objective medical expertise, and that her mental disorder was of a kind or degree warranting compulsory confinement. Furthermore, before confirming her continued confinement on 6 August 2018, the persistence of her mental disorder has been reliably verified on the basis of objective medical evidence. 68. There has accordingly been no violation of Article 5 § 1 (e) of the Convention. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 69. The applicant complained that the rejection of her request to consult a further medical expert concerning her state of mind at the time of the events had resulted in a breach of her right to a fair trial as provided for in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 70. The Government considered that the domestic courts had complied with the Convention requirements flowing from the principle of equality of arms concerning the expert reports. The applicant insisted that the domestic courts should have ordered a further, decisive expert opinion ( Obergutachten ) under Article 127 § 3 of the Code of Criminal Procedure (see paragraph 27 above) and that the failure to do so had rendered her trial unfair. 71. At the outset the Court reiterates that Article 6 § 1 of the Convention does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts. Normally, issues such as the weight attached by the national courts to particular items of evidence or to findings or assessments submitted to them for consideration are not for the Court to review. The Court should not act as a fourth-instance body and will therefore not question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017, with further references). 72. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Bykov v. Russia [GC], no. 4378/02, § 90, 10 March 2009, with further references). 73. Furthermore, the requirement of a fair trial does not impose on a trial court an obligation to order an expert opinion or any other investigative measure merely because a party has requested it. Where the defence insists on the court hearing a witness or taking other evidence (such as an expert report, for instance), it is for the domestic courts to decide whether it is necessary or advisable to accept that evidence for examination at the trial (see Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, nos. 26711/07 and 2 others, § 95, 12 May 2016, and Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 718, 25 July 2013, with further references). 74. Turning to the circumstances of the present case, the Court notes that the applicant’s complaint under this head concerned the domestic courts’ refusal to order yet another expert report as further evidence. However, the admissibility of evidence, including the question of ordering further evidence, is primarily a matter for the national courts. Moreover, the Court observes that the applicant had ample opportunity of challenging the expert reports produced in the course of the proceedings and to oppose their use, and that she had indeed availed herself of that opportunity (see, for example, paragraph 14 above). No argument was put forward before this Court which would make it doubt the quality of the expert reports produced by the various experts consulted during the proceedings. There is no need for the Court to determine whether Article 6 of the Convention is applicable to the present case under its civil or criminal head (for an outline of the Court’s case ‑ law concerning the applicability of Article 6 in the context of the internment in a psychiatric hospital of mentally ill offenders, see Hodžić, cited above, §§ 40 ‑ 47), as in any event the domestic courts’ findings do not disclose any appearance of arbitrariness nor of manifest unreasonableness (contrast with, for example, Hodžić, cited above, §§ 69 ‑ 75). Consequently, this complaint must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention. ALLEGED VIOLATION OF ARTICLE 14 in conjunction with article 5 OF THE CONVENTION 75. The applicant complained that under domestic law it would not have been an offence justifying her confinement in an institution if she had slapped someone who was not a State official. She relied in substance on Article 5 in conjunction with Article 14 of the Convention, which reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 76. The Government submitted that there was no difference in the treatment of persons finding themselves in comparable situations to that of the applicant. They argued that if another mentally ill offender had acted in the same way vis ‑ à ‑ vis a State official, he or she would have been subjected to the same treatment and would – provided all requirements set out in Article 21 § 1 of the Criminal Code (see paragraph 28 above) had been met – likewise have had to be confined in an institution for mentally ill offenders. The applicant had thus not been subjected to a difference in treatment on the basis of the Criminal Code to any other mentally ill offender. The Government consequently contended that there was no reason for them to elaborate on any possible grounds for justification on this point. 77. The applicant insisted that her right to freedom from discrimination had been severely curtailed. Hitting a police officer in the chest, without causing an injury, could result in a potentially life ‑ long confinement for a mentally ill offender. If she had hit another person in the same way, she would not have been placed in a psychiatric ward. In her view, the differentiation in domestic legislation between hitting a police officer and hitting another person did not serve any legitimate purpose. 78. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see Carson and Others v. the United Kingdom, no. 42184/05, § 63, 4 November 2008, with further references). Given that the applicant’s personal liberty was at stake in the present case, the facts fall within the ambit of Article 5 of the Convention. 79. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14. Moreover, for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Article 14 lists specific grounds which constitute “status” including, inter alia, race, national or social origin and birth. However, the list is illustrative and not exhaustive, as is shown by the words “any ground such as” and the inclusion in the list of the phrase “any other status”. Those words have generally been given a wide meaning and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Biao v. Denmark [GC], no. 38590/10, § 89, 24 May 2016, with further references). Furthermore, not all differences in treatment – or failure to treat differently persons in relevantly different situations – constitute discrimination, but only those devoid of an “objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Molla Sali v. Greece [GC], no. 20452/14, § 135, 19 December 2018; Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013 (extracts); and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV). 80. The question therefore arises whether there has been a difference in treatment in the present case of persons in relevantly similar situations on the basis of an identifiable “status” and if so, whether that treatment pursued a legitimate aim. The Government argued that all mentally ill offenders would receive the same treatment, whereas the applicant contended that the discriminatory aspect was the fact of having hit a police officer rather than a private citizen. 81. At the outset the Court notes that there are doubts whether the present case concerns a difference of treatment based on “status” within the meaning of Article 14 of the Convention. This question can be left open however as this complaint is in any event manifestly ill-founded on other grounds. For the Court the starting point is the definition of the offence which the applicant has been accused of, namely resistance to State authority, which is defined in Article 269 of the Criminal Code as “any person who prevents an authority from performing an official act by force or by threat of force and any person who prevents an official from performing an official act by force or by a dangerous threat” (see paragraph 31 above). It is clear under domestic law that, while the use of “force” is a necessary requirement to establish this offence, its purpose is not to punish the fact that the applicant hit a police officer but rather to punish (in this case) the attempt to prevent the police officer from performing an official act when the latter was arresting her, contrary to the special protection the Austrian legislator intended to confer on the enforcement and the exercise of State authority (see paragraph 31 above). The same provision cannot come into play when the same action is done vis ‑ à ‑ vis a private citizen, so far as the latter are not entitled to perform an official act in the exercise of State authority. The applicant is therefore not in a relevantly similar situation with someone who has hit a private person. Consequently, this complaint is unsubstantiated and must be rejected as manifestly ill ‑ founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention. | The Court held that there had been no violation of Article 5 § 1 (e) (right to liberty and security) of the Convention in respect of the applicant, finding that her deprivation of liberty had been shown to have been necessary in the circumstances of her case. It noted, in particular, that three psychiatric experts, who were all medical specialists in psychiatry and neurology, had given their opinion concerning the applicant, and the applicant had been diagnosed by all three experts with a type of schizophrenic disorder. This was undoubtedly serious enough to be considered as a “true” mental disorder which might render treatment in an institution necessary. The applicant had thus been reliably shown to be of unsound mind. Further, the applicant’s mental disorder had been established before a competent authority on the basis of objective medical expertise and had been of a kind or degree warranting compulsory confinement. Moreover, when deciding on her confinement as opposed to outpatient treatment, the domestic courts had taken into account that the applicant had been described as lacking awareness of the fact that she suffered from a disorder, as displaying a negative attitude towards treatment, and as sometimes having refused to take medication in the past. |
553 | Verbal abuse and threats | II. RELEVANT DOMESTIC LAW AND PRACTICE 32. The Fundamental Law of Hungary provides as follows: Article VI “(1) Everyone has the right to respect for his or her private and family life, home, communications and good reputation.” 33. Act no. CLI of 2011 on the Constitutional Court (“the Constitutional Court Act”) provides as follows: Section 26 “ (1) In accordance with Article 24 (2) c) of the Fundamental Law, person or organisation affected by a concrete case may submit a constitutional complaint to the Constitutional Court if, due to the application of a legal regulation contrary to the Fundamental Law in their judicial proceedings a) their rights enshrined in the Fundamental Law were violated, and b) the possibilities for legal remedy have already been exhausted or no possibility for legal remedy is available. (2) By way of derogation from paragraph (1), Constitutional Court proceedings may also be initiated by exception if a) due to the application of a legal provision contrary to the Fundamental Law, or when such legal provision becomes effective, rights were violated directly, without a judicial decision, and b) there is no procedure for legal remedy designed to repair the violation of rights, or the petitioner has already exhausted the possibilities for remedy. ... ” Section 27 “Any individual or organisation involved in a case may lodge a constitutional complaint with the Constitutional Court against a court decision which is contrary to the Fundamental Law within the meaning of Article 24 (2) d) of the Fundamental Law, if the ruling on the merits or another decision terminating the court proceedings a) violates the complainant ’ s right enshrined in the Fundamental Law, and b ) the complainant has already exhausted the available legal remedies or no legal remedy is available .” Section 55 “ ... (3) If the motion does not meet the requirements on the format and content of such a motion specified in this Act, the Secretary General shall call upon the petitioner to submit a duly completed petition, which the petitioner shall be obliged to do within 30 days. If the petitioner fails to submit a duly completed petition within the time-limit or submits it unduly again, the petition shall not be examined on the merits. (4) Besides the case specified in paragraph (3), the petition shall not be adjudicated on the merits if a) the petitioner fails to observe the time-limit of the submission of a petition specified by an Act or, despite the call-up to him or her, fails to justify the omission, b) the entity was manifestly unauthorised to submit such a petition, c) the adjudication of the petition manifestly does not fall within the competence of the Constitutional Court, d) the document submitted does not qualify as a petition, or e) the petition is manifestly unfounded. (5) The decision of the Constitutional Court to reject a petition without examining its merits shall be taken – at the proposal of the Secretary General – by a single judge of the Constitutional Court.” 34. The Criminal Code, as in force at the material time, provided, in so far as relevant, as follows: Violence against a member of a national, ethnic, racial or religious group Article 174/B “(1) Whosoever uses violence against another because that other person belongs to a national, ethnic, racial or religious group, or forces that person by violence or threats to do or not to do something or to tolerate any conduct is guilty of committing an offence punishable by a term of imprisonment of up to three years .” Incitement against a group Article 269 “Any person who, before the public at large, incites hatred against: a) the Hungarian nation; b) any national, ethnic, racial or other group of the population is guilty of committing an offence punishable by a term of imprisonment not exceeding three years.” 35. Constitutional Court judgment no. 75/2008 (V.29) AB of 27 May 2008 reads, in so far as relevant, as follows: “ 6. The Constitutional Court has reviewed separately section 14(1) of ARA [ Freedom of Assembly Act ] on the disbanding of assemblies. Under the relevant provision, the police must disband an assembly if the exercise of the right of assembly constitutes a criminal offence or a call to commit such offence, if it violates the rights and freedoms of others, if the participants of the assembly appear to be armed or in possession of weapons, if an assembly under the obligation of prior notification is being held without notification, if an assembly is being held at a time or location, or with a purpose or agenda different from the data in the notification, or if an assembly under the obligation of prior notification is being held despite a decision prohibiting it. 6.1. As held by the Constitutional Court, the first and the second provisos of the list found under section 14(1) (criminal offence or a call to commit such offence, violation of the rights and freedoms of others, and participants appearing in an armed manner or with weapons) do not restrict freedom of assembly. Article 62 para. (1) of the Constitution acknowledges the right to peaceful assembly, clearly not including the committing of crimes, the violation of rights or armed rallies. In such cases, Act XXXIV of 1994 on the Police (hereinafter: PA) empowers the police to apply coercive measures. ... 7 .... It is part of the police ’ s role of applying the law to interpret ARA in concrete cases and to weigh fundamental rights against aspects of public interest. Each assembly held in a public area requires a concrete decision on the issues of interpreting the law. It is impossible to preclude debates about interpreting and applying the norms. The police have to consider whether the assembly falls under the scope of ARA and of the prior notification obligation, whether it is happening in accordance with the provisions of ARA and the notification, and whether it violates or not the fundamental rights and freedoms of others etc. Similarly, the police have to assess whether the disbanding of the event and the application of coercive measures are justified or not. The court is in charge of reviewing the application of the law by the police. The law as applied by the courts is to be followed by the police, too. Unification of the legal practice reduces the danger of legal uncertainty. When adopting the decision, the Constitutional Court took into consideration the risk of abusing the right of assembly. ARA offers some legal remedies against abuse of the application of the law by the authorities, and the Constitutional Court has already assessed them in CCDec. Similarly, there exists another risk to be taken into account: the initiators, organisers and participants of some assemblies may abuse the right of assembly, i.e. the rights acknowledged in the Constitution and ARA. However, in the opinion of the Constitutional Court, the right of assembly is a freedom to be enjoyed by all, and it should not be restricted on the grounds that some people might abuse it. ARA and PA offer an adequate framework for acting against illegal assemblies that violate or directly endanger the rights of others. According to section 14(1) of ARA – held to be constitutional – non-peaceful assemblies are to be disbanded. PA provides for the application of coercive measures against those who resist the measures applied by the police, and on the basis of section 59 of PA, if the crowd shows illegal conduct, the police may use tools designed to disperse it. ” 36. The Supreme Court ’ s Guiding Resolution no. 2215/2010 contains the following relevant passages: “Criminal law – by criminalising incitement against a group – provides means for those situations where a racist statement, because of the circumstances in which it was made, poses an immediate and clear threat of violence and of the infringement of others ’ rights. Inciting [hate] speech and violence cannot go unpunished. The interpretation, according to which incitement to hatred, based on the above, is the emotional preparation for violence, is clearly established in case-law ... Accordingly ... the judicial practice qualifies as capable of inciting violence only conduct which – even if committed with conditional intent – inevitably involves recognition that the incited hatred might turn into extreme activities (intolerant, prejudicial, injurious conduct and, ultimately, violent actions) .” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 37. The applicants complained that the failure of the domestic authorities adequately to protect them from the demonstrators and properly to investigate the incident amounted to a violation of their rights under Article 8 of the Convention. This provision reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. Compatibility of the complaints with the Convention (a) The parties ’ submissions 38. The Government submitted that Article 8 of the Convention was not applicable to the applicants ’ case and they were not victims of a violation of the Convention right they relied upon. In this connection, they contended that since the applicants had been staying at the scene of the demonstration as visitors, they could not invoke under Article 8 their right to respect for their home. Furthermore, since the applicants had not suffered any physical injury, they could not rely on Article 8 and the State ’ s obligation to protect their physical integrity against attacks by third persons. The Government also maintained that the applicants ’ complaint concerning interference with their psychological integrity was to be considered under Article 3 rather than under Article 8 of the Convention, as in the cases of Karaahmed v. Bulgaria (no. 30587/13, 24 February 2015) and P.F. and E.F. v. the United Kingdom ((dec.), no. 28326/09, 23 November 2010). In this respect the Government also submitted that the impugned treatment had not reached the minimum threshold of severity required for Article 3 to come into play. 39. The applicants submitted that contrary to the Government ’ s assertion, in order for Article 8 of the Convention to apply, it was irrelevant that they had not suffered actual injuries, since their physical integrity had been exposed to a clear and imminent danger. The first applicant, Mr Király, was a resident of Devecser and although he had not stayed in his own house during the demonstration but had been at his brother ’ s house, his ties to the place and to the persons living there were close enough that it could be considered his “home” for the purposes of Article 8. They further argued that even threats that had not actually materialised into concrete acts or physical violence could affect a person ’ s psychological integrity as protected under Article 8. This was particularly the case if the threat of violence was made with reference to a person ’ s Roma origin. In their view, the threats uttered against the Roma community in an openly racist rally and accompanied by acts of violence had caused such a degree of fear and distress, as well as a feeling of menace and inferiority, that they had affected their psychological integrity, rendering Article 8 applicable in the present case. This was particularly the case, since the applicants had been subjected to intentional harassment as members of a captive audience, unable to avoid the message conveyed by the speakers and demonstrators. 40. The applicants also referred to the general context of the demonstration and the widespread discrimination suffered by the Roma minority, including repeated instances of hate speech and a series of hate-motivated killings. Lastly, they relied on the judgment of Bensaid v. the United Kingdom to point out that the Court ’ s case-law did not exclude that treatment which did not reach the severity required to bring it within the ambit of Article 3 might nonetheless breach Article 8 in its private-life aspect where there were sufficiently adverse effects on physical and moral integrity ( Bensaid v. the United Kingdom, no. 44599/98, § 46, ECHR 2001 ‑ I). (b) The Court ’ s assessment 41. The notion of “private life” within the meaning of Article 8 of the Convention is a broad term that is not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of a person ’ s physical and social identity. The Court has accepted in the past that an individual ’ s ethnic identity must be regarded as another such element (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008 -V, and Ciubotaru v. Moldova, no. 27138/04, § 49, 27 April 2010). In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group ’ s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group (see Perinçek v. Switzerland [GC], no. 27510/08, § 200, ECHR 2015 (extracts). On this basis, the Court found in Aksu that proceedings in which a person of Roma origin who had felt offended by passages in a book and dictionary entries about Roma in Turkey had sought redress had engaged Article 8 (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 60, ECHR 2012). 42. The Court ’ s case-law does not rule out that treatment which does not reach a level of severity sufficient to bring it within the ambit of Article 3 may nonetheless breach the private-life aspect of Article 8, if the effects on the applicant ’ s physical and moral integrity are sufficiently adverse (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C and R.B. v. Hungary, no. 64602/12, § 79, 12 April 2016 ). 43. Turning to the circumstances of the present case, the Court observes that the threats uttered against the Roma minority, which constitute the basis of the applicants ’ complaint under Article 8 of the Convention, did not actually materialise into concrete acts of physical violence against the applicants themselves. Nonetheless, it considers that the fact that certain acts of violence were carried out by at least some of the demonstrators, and that following the speeches the demonstrators marched down Vásárhelyi Street in the Roma neighbourhood (see paragraph 11 above) where the police requested the inhabitants not to leave their houses and the demonstrators shouted that they would come back later, any threats made during the demonstration would have aroused in the applicants a well-founded fear of violence and humiliation. Furthermore, the demonstration of an openly anti-Roma stance took place in a municipality where there had already been tension between Roma and non-Roma inhabitants (see paragraph 6 above). Lastly, the threats were directed against the inhabitants of Devecser on account of their belonging to an ethnic minority, necessarily affecting the feelings of self-worth and self-confidence of members of the group, including the applicants. More generally, as the Court has held before in the context of Article 11, the reliance of an association on paramilitary demonstrations which express racial division and implicitly call for race ‑ based action must have an intimidating effect on members of an ethnic minority, especially when they are in their homes and as such constitute a captive audience (see Vona v. Hungary, no. 35943/10, § 66, ECHR 2013). These elements, in the Court ’ s estimation, would be enough to affect the applicants ’ psychological integrity and ethnic identity, within the meaning of Article 8 of the Convention. 44. The application is therefore not incompatible ratione materiae with the provisions of the Convention. The Court accordingly dismisses the Government ’ s first objection to the admissibility of the complaint. 2. Alleged failure to exhaust domestic remedies (a) The parties ’ submissions 45. The Government contended that the applicants had not exhausted available domestic remedies. They could have brought a constitutional complaint seeking the quashing of the judgment of the Kúria of 23 September 2015. In such proceedings they could have argued that the Kúria ’ s judgment had infringed their rights enshrined in the Fundamental Law, either because the Kúria had applied a law which was unconstitutional or because it had interpreted or applied a law in an unconstitutional manner. 46. The applicants contested the Government ’ s objection. They emphasised that a Government claiming non-exhaustion bore the burden of proving to the Court that an effective remedy had been available in theory and in practice at the relevant time. They argued that the Government had failed to demonstrate that a constitutional complaint would have been an effective remedy in their situation. In any case, in their view, the constitutional complaint could only have resulted in “several remittals” to the lower-level courts and finally to the police. The proceedings before the police, however, did not constitute an effective remedy on account of their lengthy nature and the general political context. They further submitted that the police complaints procedure whereby a complaint passed to a higher - level authority within the police could not lead to an independent examination of the case, since there was a hierarchical and institutional connection between the lower-level police instances responsible for the alleged omissions and those carrying out the inquiries into the events. In this context, they also referred to the Court ’ s judgment in Szerdahelyi v. Hungary (no. 30385/07, § 31, 17 January 2012), where the Court had stated that it had not been “convinced” that the police complaints procedure could be considered an effective remedy. (b) The Court ’ s assessment 47. The Court reiterates that, according to its established case-law, the purpose of the domestic remedies rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court. However, the only remedies to be used are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV and Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 58, ECHR 2013 (extracts) ). 48. In the present case, the applicants ’ complaint concerns the domestic authorities ’ failure to fulfill their positive obligation to protect their right to private life. The Government have not referred to any decisions or judgments of the Constitutional Court which, like this Court ’ s case-law, inferred from the right to private life ( protected by the Fundamental Law under Article VI ( 1 ) ) the protection of an individual ’ s ethnic identity (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008) and the positive obligation to adopt measures designed to secure respect for private life even in the sphere of individuals ’ relationships with each other (see Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013). 49. The Court notes that under sections 27 and 55 of the Constitutional Court Act, the absence of a constitutional right renders a complaint inadmissible for examination on the merits. The Government have failed to prove that there is a constitutional right or a domestic judicial practice allowing an individual to seek, with any prospect of success, the intervention of the police for the protection of private life (see, mutatis mutandis, Apostol v. Georgia, no. 40765/02, § 39, ECHR 2006 ‑ XIV ). It follows that the application cannot be dismissed for failure to exhaust domestic remedies. 3. Conclusion as to admissibility 50. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions ( a ) The applicants 51. The applicants emphasised that the police had been clearly aware that the demonstration constituted a danger to the Roma minority, following previous experience of the behaviour of extreme right-wing groups during rallies and the fact that the demonstration had explicitly been planned in the Roma neighbourhood. This had clearly been indicated by the extensive preparations carried out by the police prior to the events. Furthermore, there had been reported incidents of violence and aggressive behaviour throughout the demonstrations. Notwithstanding, the police had failed to discharge their obligations under Article 8 to protect the applicants from violent attacks by individuals. 52. First, the demonstration fell to be regulated by the authorities. In this regard, the applicants emphasised that the legislative framework provided insufficient protection against racist rallies, in that there were no legal grounds for the police to ban a demonstration, even if it had been knowingly targeting the Roma minority its participants were prone to violence. The police could have used their powers to divert the demonstration to another place or to deny the demonstrators access to the Roma neighbourhood. Moreover, they should have intervened by calling the demonstrators to cease their unlawful conduct. 53. Secondly, the police had not even considered using their powers under section 14 of the Freedom of Assembly Act to disperse the demonstration on the grounds that it constituted a criminal offence, its character was no longer peaceful, it infringed the rights and freedoms of others, and its participants were armed. In their view, the police had failed to understand that not only the sporadic acts of violence, but also any threatening behaviour constituted a criminal offence, in particular violence against members of a group. They also submitted that none of the authorities had properly assessed that an anti-Roma demonstration of that kind, by its very nature, infringed the rights and freedoms of others. Furthermore, the applicants found it contradictory that the domestic authorities had insisted on the generally peaceful nature of the demonstration, whereas the police had admitted having decided not to take individual measures against certain demonstrators for fear of violence. The applicants also emphasised that although a small number of the demonstrators had engaged in acts of violence, they had been largely supported by the crowd. As regards the domestic authorities ’ obligation to balance the applicants ’ rights under Article 8 of Convention with that of the demonstrators, the applicants maintained that the perpetrators of vehement verbal attacks on ethnic minorities, aimed at inciting hatred, could not rely on the protection of their Convention rights. 54. Thirdly, the police had failed to take the necessary measures to single out and identify individual perpetrators in order to restore the peaceful nature of the demonstration but also for the purposes of subsequent criminal investigations. 55. Lastly, the applicants submitted that the investigations into the incident had been defective. Despite several of the participants being involved in intimidating the Roma community out of racial hatred by chanting anti-Roma slogans, conduct punishable under Article 174/B of the Criminal Code, the investigating authorities had limited the scope of their enquiries to those who had committed acts of violence. Furthermore, in the applicants ’ submission, the domestic authorities had erred in discontinuing the investigation against certain speakers on account of hate speech, since their utterances inciting people to start an ethnic war could clearly have triggered violence among the audience, given the threatening nature of the event. (b) The Government 56. The Government submitted that even if the Court found Article 8 applicable in this case, the domestic authorities had complied with their positive obligations under that Article by properly policing the demonstration. Contrary to the applicants ’ allegations, this was not a case in which the police had stood by and done nothing: they had taken a wide range of preventive measures prior to the demonstration, including vehicle checks, identity checks and consultations with the representatives of the Roma minority. They had also considered that the most effective method to secure the demonstration had been for the force to act as a team and not to take measures against certain individuals. This operational decision fell within the ambit of legitimate police discretion, as confirmed by the domestic courts ’ decisions. 57. The Government also submitted that the case concerned on the one hand, the right of a political group to freedom of expression and assembly, guaranteed by Articles 10 and 11 of the Convention and, on the other, the right of the local residents to their private life, guaranteed by Article 8. The alleged failure of the police to ban or disperse the demonstration had corresponded to their obligation to strike a fair balance between those two competing interests. In the Government ’ s opinion, the interference with the applicants ’ right to private life had been negligible, since, contrary to their submissions, they had not been members of a captive audience, but had been visiting Devecser to confront the demonstrators. On the other hand, the domestic authorities had a very narrow margin of discretion in restricting the exercise of the freedoms protected under Articles 10 and 11. 58. The Government further emphasised that the demonstration, a one-off event, had lasted only two hours and the sporadic acts of violence only a couple of minutes. Thus the event could not be characterised as violent, justifying possible dispersal. 59. Finally, the criminal investigation undertaken after the demonstration had complied with the State ’ s positive obligations under Article 8. In particular, as regards the punishment of the alleged hate speech, the Government submitted that domestic authorities, having a better knowledge of a particular society, were better placed to decide where the limits of free speech and hate speech should be set, and an open debate would allow for mitigating racist tensions within the society. 2. The Court ’ s assessment (a) General principles 60. The Court reiterates that while the essential object of Article 8 of the Convention is to protect the individual against arbitrary action by public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations between individuals (see Söderman, cited above, § 78). To that end, States are required to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009, and A v. Croatia, no. 55164/08, § 60, 14 October 2010). 61. The State ’ s positive obligation under Article 8 to safeguard the individual ’ s physical integrity may also extend to questions relating to the effectiveness of the criminal investigation (see Osman v. the United Kingdom, 28 October 1998, § 128, Reports 1998 ‑ VIII, and C.A.S. and C.S. v. Romania, no. 26692/05, § 72, 20 March 2012 ) and to the possibility of obtaining reparation and redress (see, mutatis mutandis, A, B and C v. Latvia, no. 30808/11, § 149, 31 March 2016 ), although there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see, for example, Brecknell v. the United Kingdom, no. 32457/04, § 64, 27 November 2007 ). More generally, however, in respect of less serious acts between individuals which may violate psychological integrity, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection ( see Söderman, cited above, § 85 ). 62. The Court also reiterates that its task is not to substitute itself for the competent domestic authorities in determining the most appropriate methods for protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. The Court will therefore examine whether Hungary, in handling the applicants ’ case, has been in breach of its positive obligation under Article 8 of the Convention (see mutatis mutandis, Sandra Janković, cited above, § 46). (b) Application of the above principles in the instant case 63. The Court notes that the applicants ’ complaints concern the alleged inadequacy of the Hungarian authorities ’ response to the intimidating anti-Roma demonstration that had taken place in their neighbourhood. In particular, they pointed out the failure of the police to take preventive measures and react promptly, either by dispersing the demonstration or by applying measures against certain individuals, as well as the shortcomings in the subsequent criminal prosecutions. 64. As regards the decision of the police, subsequently reviewed by the Administrative and Labour Court and the Kúria, not to disperse the demonstration, this Court has previously accepted that in certain situations the domestic authorities might be required to proceed with the dispersal of a violent and blatantly intolerant demonstration in order to protect an individual ’ s private life under Article 8 (see R.B. v. Hungary, cited above, § 99). Examining the domestic approach to dispersal of demonstrations, it appears that the police have a similar obligation to disband an assembly if the exercise of the right of assembly constitutes a criminal offence or a call to commit such an offence, or if it violates the rights and freedoms of others, as demonstrated by the judgment of the Constitutional Court (see paragraph 3 5 above). 65. When assessing whether such an obligation had arisen in the present case, the domestic courts gave consideration to the applicants ’ arguments concerning the unlawful nature of the demonstration. They nonetheless concluded that in the light of previous case-law, there had been no legal basis to disperse the demonstration, since it had maintained its generally peaceful nature, despite some unruly incidents. The Kúria also attached weight to respect for the principle of proportionality when having recourse to force, and the risk of violence to the Roma community the measure could have had implied. 66. The Court notes in this respect that in cases where the applicants were able to raise their arguments before the domestic courts, which gave them careful consideration, it is not for this Court to substitute its own assessment for that of the national courts; indeed, it cannot question that assessment, unless it is manifestly unreasonable or there is clear evidence of arbitrariness (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 89, ECHR 2007 ‑ I). In the present circumstances, the Court is satisfied that there was no appearance of arbitrariness or a manifest lack of judgment on the part of the authorities as regards the decision of the police not to disperse the demonstration. 67. In a similar vein, the absence of individual measures ( for example, identity checks and questioning) was fully considered, first by the investigating authorities and, secondly, by the domestic courts (see paragraphs 25-26 above). In particular, the national courts engaged in an assessment of whether the action taken by the police had been professionally justified and whether they had been sufficient to protect the applicants and the Roma community in general. The courts emphasised that the police had taken a number of preparative steps, had changed the classification of the demonstration and had placed themselves between the protesters and the local residents. 68. In this regard, the Court reiterates its previous finding that the police must be afforded a degree of discretion in taking operational decisions. Such decisions are almost always complicated and the police, who have access to information and intelligence not available to the general public, will usually be in the best position to make them (see P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, § 41, 23 November 2010). 69. Consequently, the Court does not consider it appropriate to call into question the findings of the domestic courts concerning the adequacy of the police reaction to the demonstration. 70. Nonetheless, the fact remains that the applicants were unable to avert a demonstration advocating racially motivated policies and intimidating them on account of their belonging to an ethnic group. 71. As regards the ensuing criminal proceedings against the speakers and the participants of the demonstration, the Court notes that the criminal investigation into the crime of incitement against a group was discontinued because the domestic authorities found that the speakers ’ statements during the march were not covered by the said offence (see paragraph 29 above). It also notes that an investigation was opened into the criminal offence of violence against a member of a group, in the course of which four demonstrators were found to have thrown stones at a house inhabited by a Roma family. The ensuing criminal proceedings led to the conviction of one of the demonstrators, the other three remaining unidentifiable (see paragraph 30 above). 72. The Court has already dealt with cases of harassment motivated by racism which involved no physical violence, but rather verbal assault and physical threats. It found that the manner in which the criminal-law mechanisms had been implemented was a relevant factor for its assessment of whether the protection of the applicant ’ s rights had been defective to the point of constituting a violation of the respondent State ’ s positive obligations under Article 8 of the Convention (see R.B. v. Hungary, cited above, §§ 84-85 ). 73. In considering the present case, the Court will draw inspiration from the principles formulated in its previous case-law under Article 10 of the Convention concerning statements alleged to have stirred up violence, hatred and intolerance. The key factors in the Court ’ s assessment were whether the statements had been made against a tense political or social background (see Zana v. Turkey, 25 November 1997, §§ 57-60, Reports 1997-VII; Sürek v. Turkey (no. 1) [GC], no. 26682/95, §§ 52 and 62, ECHR 1999-IV; Soulas and Others v. France, no. 15948/03, § 33, 10 July 2008, and Féret v. Belgium, no. 15615/07, §§ 66 and 76, 16 July 2009 ), whether the statements, fairly construed and seen in their immediate or wider context, could have been seen as a direct or indirect call for violence or as a justification for violence, hatred or intolerance (see, among other authorities, Özgür Gündem v. Turkey, no. 23144/93, § 64, ECHR 2000-III and Fáber v. Hungary, no. 40721/08, §§ 52 and 56-58), and the manner in which the statements had been made, and their capacity – direct or indirect – to lead to harmful consequences (see Karataş v. Turkey ([GC], no. 23168/94, §§ 51-52, ECHR 1999 ‑ IV). 74. In all of those cases, it was the interplay between the various factors, rather than any one of them taken in isolation, that determined the outcome of the case. The Court ’ s approach to that type of case can thus be described as highly context-specific (see Perinçek, cited above, § 208). 75. Aware of its subsidiary role, the Court is mindful that it is prevented from substituting its own assessment of the facts for that of the national authorities. Nonetheless, based on the above, it cannot but consider that the domestic authorities should have paid particular attention to the specific context in which the impugned statements were uttered. 76. In particular, the rally in general quite clearly targeted the Roma minority, which was supposedly responsible for “Gypsy criminality”, with the intention of intimidating this vulnerable group. Besides the adherents of a right-wing political party, it was attended by members of nine far-right groups, known for their militant behaviour and acting as a paramilitary group, dressed in uniforms, marching in formation and obeying commands. The speakers called on participants to “fight back” and “sweep out the rubbish from the country”. Their statements referred to an ongoing ethnic conflict and the use of all necessary means of self-protection. It was following the speeches that the demonstrators marched down Vásárhelyi Street between the houses inhabited by the Roma, uttered obscenities against the inhabitants and engaged in acts of violence. Throughout the event, the police placed themselves between the demonstrators and the Roma residents to ensure the protection of the latter, while the participants themselves threatened the Roma that they would come back once the police had gone and demanded the police not to protect the Roma minority. 77. Moreover, the event was organised in a period when marches involving large groups and targeting the Roma minority had taken place on a scale that could qualify as “large-scale, coordinated intimidation” (see Vona, cited above, § 69). 78. For the Court, these were relevant factors that should have been taken into consideration when assessing the nature of the speeches. This is all the more so that according to the domestic courts ’ case-law, racist statements together with the context in which they were expressed could constitute a clear and imminent risk of violence and violation of the rights of others (see paragraph 3 6 above). However, it appears that the investigating authorities paid no heed to those elements when concluding that the statements had been hateful and abusive but that they had not incited violence. Thus, the domestic authorities inexplicably narrowed down the scope of their investigations. 79. As regards the criminal investigations into the offence of violence against a member of a group, the Court recalls that for an “investigation to be regarded as ‘ effective ’, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means” (see, albeit in the context of Article 3, Identoba and Others v. Georgia, no. 73235/12, § 66, 12 May 2015). In the present case, these proceedings lasted almost three years; and their scope was statutorily bound to be limited to the actual acts of violence. The authorities eventually identified one incident liable to prosecution; the perpetrator was prosecuted for, and charged with, violence against a member of a group and convicted of that offence. Although the police had had sufficient time to prepare themselves for the event and should have been able to interrogate numerous persons after the incident (see paragraph 17 above), only five demonstrators were questioned; and three of the alleged perpetrators could not be identified. For the lack of any other elements possibly falling within the hypothesis of the offence in question, the police were not in a position to extend the scope of the prosecution to any other protagonists. In these circumstances, the Court finds that this course of action in itself was not “capable of leading to the establishment of the facts of the case” and did not constitute a sufficient response to the true and complex nature of the situation complained of. 80. The cumulative effect of those shortcomings in the investigations, especially the lack of a comprehensive law enforcement approach into the events, was that an openly racist demonstration, with sporadic acts of violence (see paragraphs 11-12 and 25-26 above) remained virtually without legal consequences and the applicants were not provided with the required protection of their right to psychological integrity. They could not benefit of the implementation of a legal framework affording effective protection against an openly anti-Roma demonstration, the aim of which was no less than the organised intimidation of the Roma community, including the applicants, by means of a paramilitary parade, verbal threats and speeches advocating a policy of racial segregation. The Court is concerned that the general public might have perceived such practice as legitimisation and/or tolerance of such events by the State. 81. In the light of these findings the Court does not consider it necessary to address separately the applicants ’ argument that the demonstration should have been banned. 82. Having regard to the above -mentioned considerations, the Court is not satisfied that the domestic laws and practice ensured protection of the applicants ’ right to respect for their private life. Notwithstanding the respondent State ’ s margin of appreciation in this field, the Court concludes that the State did not comply with its positive obligations under Article 8 of the Convention. There has accordingly been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 83. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 84. The applicants claimed 10,000 euros (EUR) each in respect of non-pecuniary damage. 85. The Government contested those claims. 86. The Court considers that the applicants must have suffered non-pecuniary damage on account of the violations found, and awards them, on an equitable basis, EUR 7,500 each in respect of non-pecuniary damage. B. Costs and expenses 87. Mr Király also claimed EUR 450 in respect of the court fees and legal costs he had had to pay in the domestic proceedings. He also claimed EUR 2,755 plus value-added tax (VAT) for the costs and expenses incurred before the Court. That amount corresponds to EUR 2,560 in legal costs charged by his lawyer for 23.5 hours of legal work at an hourly rate of EUR 102 plus VAT, and EUR 195 in clerical costs. In total Mr Király claimed EUR 3,205 plus VAT. 88. Mr Dömötör claimed EUR 480 in respect of the court fees and legal costs he had had to pay in the domestic proceedings. He also claimed EUR 2,755 plus VAT for the costs and expenses incurred before the Court. That amount corresponds to EUR 2,560 in legal costs charged by his lawyer for 23.5 hours of legal work at an hourly rate of EUR 102, plus VAT, and EUR 195 in clerical costs. In total Mr Dömötör claimed EUR 3,235 plus VAT. 89. The Government contested those claims. 90. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court finds it reasonable to award the sums claimed in their entirety, that is EUR 3,205 plus VAT to Mr Király and EUR 3,235 plus VAT to Mr Dömötör. C. Default interest 91. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found in particular that the Hungarian authorities’ investigations into the incident had been limited. Namely, one of the investigations – concerning the speeches made during the demonstration – had not taken into account the specific context of the abuse and another – concerning the offence of violence against a group – had been slow and limited to acts of physical violence. The investigations had not therefore established the true and complex nature of the events. The cumulative effect of these shortcomings had meant that an openly racist demonstration, with sporadic acts of violence, had remained virtually without legal consequences. Indeed, the applicants’ psychological integrity had not been effectively protected against what had amounted to nothing less than organised intimidation of the Roma community, by means of a paramilitary parade, verbal threats and speeches advocating a policy of racial segregation. The Court was concerned that this could be perceived by the public as the State’s legitimisation and/or tolerance of such behaviour. |
656 | Freedom of expression (Article 10 of the Convention) | II. RELEVANT DOMESTIC LAW, COMMENTARY AND PRACTICE A. The Criminal Code of the Republic of Serbia 1977 ( Krivični zakon Republike Srbije; published in the Official Gazette of the Socialist Republic of Serbia – OG SRS – nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89 and 42/89, as well as in the Official Gazette of the Republic of Serbia – OG RS – nos. 21/90, 16/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02 and 80/02) 34. The relevant provisions of this Code read as follows: Article 92 “Whoever, in relation to another, asserts or disseminates a falsehood which can damage his [or her] honour or reputation shall be fined or punished by imprisonment not exceeding six months. If an act described in [the above] paragraph has been committed through the press, via radio or television ... [or otherwise through the mass media] ... or at a public meeting, the perpetrator shall be punished by imprisonment not exceeding one year. ... If the defendant proves his [or her] claims to be true or if he [or she] proves that there were reasonable grounds to believe in the veracity of the claims which he [or she] had made or disseminated, he [or she] shall not be punished for defamation, but may be punished for the offence of insult ... or the offence of reproaching someone for the commission of a criminal offence... Whoever, in relation to another, falsely claims or disseminates claims to the effect that he [or she] has committed a crime prosecuted ex officio, shall be punished for defamation even if there were reasonable grounds to believe in their veracity, unless such claims have been made or disseminated pursuant to Article 96 § 2 of this Code. The veracity of the claim that someone has committed a crime prosecuted ex officio may be proved only by means of a final court judgment and through other means of proof only if criminal prosecution or a trial are not possible or are legally precluded.” Article 96 §§ 1 and 2 “... [No one] ... shall ... be punished for insulting another person if he [or she] so does in a scientific, literary or artistic work, a serious critique, in the performance of his [or her] official duties, his [or her] journalistic profession, as part of a political or other social activity or in defence of a right or of a justified interest, if from the manner of his [or her] expression or other circumstances it transpires that there was no [underlying] intent to disparage. In situations referred to above, ... [the defendant] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio, even though there is no final judgment to that effect ..., if he [or she] proves that there were reasonable grounds to believe in the veracity of ... [those claims] ...” B. The Criminal Code of the Federal Republic of Yugoslavia ( Krivični zakon Savezne Republike Jugoslavije; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 4 6/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, as well as in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01 ) 35. The relevant provisions of this Code read as follows: Article 4 “ It is the criminal legislation which was in force at the time of commission of the crime in question that shall be applied to the perpetrator thereof. If the criminal legislation has been amended once or on several occasions thereafter, the legislation which is more favourable for the perpetrator shall be applied.” Article 51 “... [T]he purpose of a suspended sentence ... is that punishment ... for socially less dangerous acts not be imposed ... when ... it can be expected that an admonition with a threat of punishment ( suspended sentence) ... will ... [be sufficient to deter the offender] ... from committing any [other] criminal acts.” Article 52 § 1 “In handing down a suspended sentence, the court shall impose punishment on the person who had committed a criminal act and at the same time order that this punishment shall not be enforced if the convicted person does not commit another criminal act for a ... [specified] ... period of time which cannot be less than one or more than five years in all (period of suspension) ...” Article 53 § 4 “In deciding whether to impose a suspended sentence, the court shall take into account the purpose of [this] sentence, the personality of the offender, his [or her] conduct prior to and following the commission of the criminal act, the degree of his [or her] criminal liability, as well as other circumstances under which the act has been committed.” Article 54 §§ 1 and 2 “The court shall revoke the suspended sentence if, during the period of suspension, the convicted person commits one or more criminal acts for which he or she is sentenced to imprisonment for a term of or exceeding two years. If, during the period of suspension, the convicted person commits one or more criminal acts and is sentenced to imprisonment for a term of less than two years or to a fine, the court shall, upon consideration of all the circumstances ... including the similarity of the crimes committed ... decide whether to revoke the suspended sentence ...” Article 93 § 2 “A suspended sentence shall be expunged one year following the date of expiry of the period of suspension, if the convicted person does not commit another criminal act during this time.” Article 94 § 3 “When a conviction has been expunged, information about the conviction may ... be given ... [only] ... to the courts, the public prosecution service and the police in connection with an ongoing criminal case against the person ... [concerned] ... ” C. Subsequent criminal legislation 36. In 2005 the Serbian Parliament enacted a new Criminal Code ( Krivični zakonik ). It was published in OG RS no. 85/05 and entered into force on 1 January 2006, thus repealing the above - mentioned criminal legislation. The new Code provided for the offence of criminal defamation, in Article 171, but envisaged that only a fine, not a prison term, could be imposed on the perpetrators thereof. 37. The Criminal Code 2005 was amended on four occasions thereafter. Ultimately, the amendments adopted in 2012, which were published in OG RS no. 121/12 and entered into force on 1 January 2013, repealed Article 171 of the Criminal Code 2005. Criminal defamation thereby ceased to be a criminal offence in the Serbian legal system. D. The Obligations Act ( Zakon o obligacionim odnosima; published in OG SFRY nos. 29/78, 39/85, 45/89 and 57/89, as well as in OG FRY no. 31/93) 38. Under Articles 199 and 200, inter alia, anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. 39. Article 200 § 2 provides, inter alia, that when deciding on the exact amount of compensation to be awarded, the courts must take into account all of the relevant circumstances. There is also long-standing domestic case-law to the effect that the courts must be vigilant not to give in to any lucrative animus when it comes to compensation claims filed in respect of alleged breaches of one ’ s reputation (see, for example, the decision of the Supreme Court of Yugoslavia, Rev. 277/66). E. The Civil Procedure Act 2004 ( Zakon o parničnom postupku; published in OG RS nos. 125/04 and 111/09 ) 40. Article 13 provides that a civil court is bound by a final decision of a criminal court in respect of whether a crime was committed, as well as concerning the criminal liability of the person convicted. An acquittal, however, does not rule out a civil suit for damages since the conditions for criminal and civil liability are different (see Komentar Zakona o parničnom postupku, Mr Svetislav R. Vuković, Poslovni biro, Belgrade, 2004, p. 18). F. The Enforcement Procedure Act 2004 (Zakon o izvršnom postupku; published in OG RS no. 125/04) 41. Article 156 § 1 provides, inter alia, that, as part of the enforcement procedure, up to two thirds of a debtor ’ s pension may be withheld. G. The Enforcement Procedure Act 2011 ( Zakon o izvršenju i obezbeđjenju, published in OG RS nos. 31/11 and 99/11) 42. Article 148 § 1 of this Act, in its relevant part, corresponds to the substance of Article 156 § 1 of the Enforcement Procedure Act 2004. 43. According to Article 363, the Enforcement Procedure Act 2011 entered into force on 18 September 2011, while pursuant to Article 358 § 1 all pending enforcement proceedings shall be completed on the basis of this new Act. H. The Statutory Interest Act 2001 ( Zakon o visini stope zatezne kamate; published in OG FRY no. 9/01 and OG RS no. 31/11) 44. Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement. 45. Article 2 states that such interest shall be calculated on the basis of the official consumer price index plus another 0.5% monthly. 46. Article 3 § 1 sets out the exact method of calculating the interest in question. THE LAW I. JOINDER OF THE APPLICATIONS 51. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 52. The applicant complained, under Article 10 of the Convention, about the breach of her freedom of expression suffered due to her criminal conviction, the subsequent civil defamation judgment rendered against her, and, also, the way in which the latter was enforced domestically, causing her, as it did, extreme financial hardship, numerous health problems and even endangering her very life. The applicant additionally referred to Articles 3 and 8 of the Convention in this context, as well as to Article 1 of Protocol No. 1. 53. It being the “master of the characterisation” to be given in law to the facts of any case before it (see, for example, Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005), the Court considers that this complaint primarily falls be examined under Article 10 of the Convention, which, insofar as relevant, reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...” 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...” A. Admissibility 1. As regards the criminal proceedings 54. The Government maintained, inter alia, that since the proceedings before the Constitutional Court were still pending in this respect (see paragraphs 13 above), the applicant ’ s complaint regarding the criminal case brought against her had to be rejected on the grounds of non-exhaustion. 55. The applicant recalled that she had lodged her application (no. 4678/07) with the Court on 29 December 2006, at which time the constitutional appeal had still not been considered effective. 56. The Court recalls that it has consistently held that a constitutional appeal should, in principle, be deemed effective within the meaning of Article 35 § 1 of the Convention in respect of applications introduced against Serbia as of 7 August 2008 (see Vinčić and Others v. Serbia, no. 44698/06 and others, § 51, 1 December 2009; see also Rakić and Others v. Serbia, no. 47460/07 and others, § 39, 5 October 2010, and Hajnal v. Serbia, no. 36937/06, §§ 122 and 123, 19 June 2012). It is understood, however, that any complaints concerning subsequent facts, including proceedings and/or decisions, shall have their own, “new”, introduction date. The mere fact that the applicant has relied on the same Article of the Convention in his or her application is not sufficient to validly raise all subsequent complaints made under that provision (see, for example, Allan v. United Kingdom (dec.), no. 48539/99, 28 August 2001; and Zervakis v. Greece (dec.), no. 64321/01, 17 October 2002). 57. In view of the above, the Court notes that the original criminal proceedings brought against the applicant had ceased to be of relevance as of 29 July 2009, which was when the Municipal Court accepted the applicant ’ s motion for their reopening (see paragraph 11 above). The subsequent criminal proceedings were concluded by 2 9 November 2011, hence post 7 August 2008, and the case before the Constitutional Court has been pending since 19 January 2012 (see paragraphs 12 and 13 above). In these circumstances, the applicant ’ s remaining complaint relating to the criminal proceedings following their reopening is premature and must, as such, be rejected under Article 35 §§ 1 and 4 of the Convention on the grounds of non-exhaustion. 2. As regards the civil and enforcement proceedings 58. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits (as regards the civil and the enforcement proceedings ) 1. The parties ’ submissions 59. The Government admitted that the applicant ’ s freedom of expression had been restricted. This restriction, however, had been in accordance with the applicable domestic law and had pursued the legitimate aim of protecting the reputation of others. The competent civil courts had also properly assessed the facts and adequately applied the relevant domestic legislation. The applicant ’ s allegation to the effect that her lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case, had been a statement of fact in support of which no credible evidence had ever been offered. This statement had likewise not been given in any constructive social context, but merely as an expression of the applicant ’ s personal dissatisfaction. Further, Mr NB, being a practising lawyer, could not have remained passive in the face of such serious allegations undermining his very livelihood. Finally, the Government argued that neither the sum which had been awarded to Mr NB by the civil courts, consistent with damages awarded in other similar cases, nor the manner of its subsequent enforcement could be deemed disproportionate. While, admittedly, the applicant ’ s pension had been low this could not have absolved her from paying for the profound damage caused to Mr NB. In any event, approximately one third of the total principal sum due to be paid by the applicant consisted of the costs incurred by Mr NB in the course of the civil and enforcement proceedings. 60. The applicant reaffirmed her complaint. She added that the newspaper article was the journalist ’ s responsibility and that she had provided Ms SN with the relevant information but had never seen the piece before its publication. In any event, the fact remained that Mr NB had failed to adequately represent the applicant throughout the proceedings in question. The civil judgments rendered against the applicant amounted therefore to, at best, a disproportionate interference with her freedom of expression, particularly bearing in mind the pension-related deductions imposed in the course of the enforcement proceedings and considering her dire financial and medical situation. 2. The Court ’ s assessment 61. The freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among many other authorities, Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts)). Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see, for example, Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204 ). 62. The Court has repeatedly upheld the right to impart, in good faith, information on matters of public interest, even where this involved damaging statements about private individuals (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, ECHR 1999 ‑ III). However, account must be taken of the distinction between factual statements on the one hand and value judgments on the other, since the existence of facts can be demonstrated whereas the truth of value judgments is not susceptible to proof (see, for example, Lingens v. Austria, judgment of 8 July 1986, § 46, Series A no. 103; and McVicar v. the United Kingdom, no. 46311/99, § 83, ECHR 2002 ‑ III). 63. The nature and severity of the sanction imposed, as well as the “relevance” and “sufficiency” of the national courts ’ reasoning, are matters of particular importance in assessing the proportionality of the interference under Article 10 § 2 (see Filipović, cited above, § 55). The amount of any compensation awarded must likewise “bear a reasonable relationship of proportionality to the ... [moral] ... injury ... suffered” by the plaintiff in question (see Tolstoy Miloslavsky, cited above, § 49; see also Steel and Morris v. the United Kingdom, no. 68416/01, § 96, ECHR 2005, where the Court held that the damages “awarded ... although relatively moderate by contemporary standards ... [ had been ] ... very substantial when compared to the modest incomes and resources of the ... applicants ... ” and, as such, in breach of the Convention). 64. Turning to the present case, the Court notes that both the final civil court judgment rendered against the applicant and the subsequent enforcement order undoubtedly constituted an interference with the applicant ’ s right to freedom of expression. Since they were based on the Obligations Act and the applicable enforcement procedure legislation, however, they were also clearly “prescribed by law” within the meaning of Article 10 § 2 of the Convention (see paragraphs 38 and 41-43 above). Lastly, the judgment in question, as well as the enforcement order, were adopted in pursuit of a legitimate aim, namely “for the protection of the reputation” of another. What remains to be resolved, therefore, is whether the interference was “necessary in a democratic society”. 65. In this respect the Court notes that the damages plus costs awarded against the applicant amounted to approximately EUR 4,900 and were, as such, equal to a total of more than sixty of the applicant ’ s monthly pensions calculated on the basis of the available information as of December 2006 (see paragraphs 15 and 5 above, in that order; see also, mutatis mutandis, Koprivica v. Montenegro, no. 41158/09, § § 73-75, 22 November 2011 ). This sum was also very similar to the amount awarded in a separate civil suit concerning the same issue brought against, inter alios, Dnevnik and the Autonomous Province of Vojvodina, as two certainly more financially viable legal entities (see paragraph 32 above). 66. Furthermore, while it is true that the criminal complaint filed by the police against Mr NB had been rejected by the Novi Sad Municipal Public Prosecutor ’ s Office, and that the applicant had been informed of this rejection on the grounds of prescription by 5 July 2002 (see paragraph 11 above), it cannot be said that her statement in respect of her former counsel had been merely a gratuitous personal attack. After all, the police had clearly seen some merit in these allegations and the applicant ’ s subsidiary prosecution was not rejected by the courts until 30 September 2004 ( ibid .), well after the publication of the impugned article on 12 December 2002 (see, mutatis mutandis, Koprivica, cited above, § 67, in fine ). Moreover, the Government ’ s proposition that a discussion of a practising lawyer ’ s professional conduct is clearly a matter of no public interest is in itself a dubious one, particularly bearing in mind the role of lawyers in the proper administration of justice. 67. Finally but most strikingly, on 14 July 2009 the Novi Sad Municipal Court issued an enforcement order whereby two thirds of the applicant ’ s pension were to be transferred to Mr NB ’ s bank account each month, until the sums awarded to him have been paid in full (see paragraph 26 above), all this notwithstanding that Article 156 § 1 of the Enforcement Procedure Act 2004 had provided that up to two thirds of a debtor ’ s pension might be withheld, thus clearly leaving room for a more nuanced approach (see paragraph 41 above). The said deductions began as of 8 August 2009, and by 30 June 2013 the applicant had paid a total of approximately EUR 4,350 (see paragraphs 27 and 29 above). Nevertheless given the accrued and future interest, she will have to continue with the payments for approximately another two years (see paragraph 29 above). In May 2012 the applicant ’ s monthly pension was some EUR 170. After deductions, she was hence left with approximately EUR 60 on which to live and buy her monthly medication (see paragraph 28 above). Since the latter would cost her approximately EUR 44, she maintained, and the Government never contested this assertion, that she can no longer afford to buy it (see paragraph 31 above). This is in the Court ’ s opinion a particularly precarious situation for an elderly person suffering from a number of serious diseases (see paragraph 30 above). 68. In view of the above, the Court finds that the interference in question was not necessary in a democratic society. Accordingly, there has been a violation of Article 10 of the Convention. 69. Having regard to this finding, the Court further considers that it is also not necessary to examine separately the admissibility or the merits of the applicant ’ s essentially identical complaints made under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1. III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION 70. Under Article 6 § 1 of the Convention, the applicant complained about the fairness and the length of the criminal proceedings prior to and after their reopening, the fairness and the length of the civil defamation proceedings, and the length of the proceedings before the Constitutional Court instituted on 29 May 2009. 71. Article 6 § 1, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law ... ” 72. The Government contested the admissibility, including on the grounds of non-exhaustion, and the merits of the above-alleged violations. A. The Court ’ s assessment as regards the criminal proceedings (i.e. the complaints made in app. no. 4678/07 lodged on 29 December 2006) 73. As already noted above, the Court is of the opinion that the original criminal proceedings brought against the applicant had ceased to be of relevance as of 29 July 2009, which was when the Municipal Court had ordered their reopening (see paragraphs 57 and 11 above, in that order). The applicant ’ s complaints as regards their fairness are therefore manifestly ill-founded and must, as such, be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 74. Concerning the length of the criminal proceedings prior to their reopening, the Court notes that the Convention had entered into force in respect of Serbia on 3 March 2004 and that by 19 July 2006 these proceedings had been terminated (see paragraph 9 above; see also Eckle v. Germany, 15 July 1982, § 84, Series A no. 51). The case in question had therefore lasted for a period of approximately two years and four months within the Court ’ s competence rarione temporis, during which time the charges brought against the applicant had been examined at two instances. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 75. Turning, lastly, to the issue of fairness and length of the criminal proceedings following their reopening, and for the reasons already explained at paragraphs 56 and 57 above, the Court considers that this part of the application is premature (see paragraph 13 above). It must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. B. The Court ’ s assessment as regards the civil and constitutional proceedings (i.e. the complaints made in app. no. 50591/12 lodged on 28 May 2012) 76. The Court notes that applicant has never specifically complained before the Constitutional Court about the length of the civil defamation suit (see paragraph 19 above). This complaint must therefore, bearing particularly in mind the date of its introduction, be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies ( see Vinčić, cited above, § 51; see also paragraph 56 above ). 77. Concerning the length of the proceedings before the Constitutional Court, it is recalled that the reasonableness of these proceedings must be assessed in the light of the specific circumstances of the case, regard being had in particular to its complexity, the parties ’ conduct, and the importance of the issues at stake for the applicant (see, for example, Šikić v. Croatia, no. 9143/08, § 35, 15 July 2010 ). It is further understood that its role of guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (see Šikić v. Croatia, no. 9143/08, § 37, 15 July 2010). Turning to the matter at hand, the Court notes that the impugned proceedings had been instituted on 29 May 2009 (see paragraph 19 above). Some two and a half years later, on 21 December 2011, the applicant was informed of the adoption of the decision in her case, although the decision itself would seem to have been served by 23 April 20 12 (see paragraph 24 above). Finally, the applicant ’ s constitutional complaint was of some complexity, and the applicant herself had repeatedly supplemented the original constitutional appeal with additional submissions (see paragraphs 19, 20 and 22 above). In such circumstances, the underlying civil defamation proceeding having themselves lasted for approximately two years and four months (see paragraphs 14-17 above) and despite the applicant ’ s advanced age and the seriousness of the issues at stake for her, the Court cannot but reject this complaint as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention (compare and contrast to, for example, Nikolac v. Croatia, no. 17117/06, § 17, 10 July 2008, Butković v. Croatia, no. 32264/03, § 27, 24 May 2007, and Šikić, cited above, § 37, where the Court found violations of the reasonable time requirement contained in Article 6 § 1 of the Convention in urgent cases involving labour-related and housing issues; the constitutional proceedings therein had lasted for approximately three years and four months, three years and six months, and three years and nine months, respectively, and considered together with the prior civil proceedings had lasted globally for approximately seven years, six and a half years, and five years within the Court ’ s competence ratione temporis respectively). IV. OBLIGATIONS UNDER ARTICLE 34 OF THE CONVENTION 78. The applicant noted that her former lawyer, who had represented her before the Court prior to Mr Dodig, had twice failed to receive the Court ’ s correspondence addressed to his office. The applicant maintained that the respondent State had every reason to engage in this interference, hoping that the Court would conclude that she had lost interest in her Strasbourg application. 79. The Government made no comment in this regard. 80. Article 34 of the Convention provides as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 81. According to the Court ’ s case-law, a complaint under Article 34 of the Convention does not give rise to any issue of admissibility under the Convention (see Cooke v. Austria, no. 25878/94, § 46, 8 February 2000; and Ergi v. Turkey, judgment of 28 July 1998, § 105, Reports 1998-IV). 82. The Court notes that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of the individual effectively to present and pursue a complaint with the Court. While the obligation imposed is of a procedural nature distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of alleged infringements of it in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002). 83. It is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy. The issue of whether or not contacts between the authorities and an applicant amount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances ( ibid .). 84. Turning to the present case, the Court finds that there is an insufficient factual basis for it to conclude that the authorities of the respondent State have interfered in any way with the applicant ’ s exercise of her right of individual petition, it being noted that the Court cannot speculate as to who may have interfered with the correspondence addressed to the applicant ’ s former counsel and in which context (see, mutatis mutandis, Juhas Đurić v. Serbia, no. 48155/06, § 75, 7 June 2011). 85. In view of the foregoing, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 86. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 87. The applicant claimed EUR 77 ,000 and EUR 7,000 in respect of pecuniary and non-pecuniary damage, respectively. 88. The Government contested these claims. 89. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 6 ,000 in respect of the non- pecuniary damage suffered as a consequence of the violation of her rights guaranteed under Article 10 of the Convention. 90. As regards the pecuniary damage, the Court notes that in May 2012 the applicant ’ s monthly pension was approximately EUR 170. After deductions, the applicant was left with some EUR 60 on which to live. Further, by 30 June 2013 the applicant had paid a total of approximately EUR 4,350 through the enforcement proceedings. However, given the accrued and future interest, she will have to continue with the payments for approximately another two years, and pay an additional EUR 2,000. In these circumstances, having already found the said interference to be disproportionate within the meaning of Article 10 of the Convention and without speculating on the exact amount of damages and costs, plus interest, which might have been adequate, the Court considers it reasonable to award the applicant the additional sum of EUR 5,500 for the pecuniary damage suffered. B. Costs and expenses 91. The applicants also claimed a total of EUR 2,736 for the costs and expenses incurred domestically, as well as those incurred before the Court. 92. The Government contested this claim. 93. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are also reasonable as to their quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,200 covering costs under all heads. C. Default interest 94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It observed in particular that the damages plus costs awarded against the applicant were equal to a total of more than 60% of her monthly pension. Furthermore, it could not be said that the applicant’s statement in respect of her former counsel had been merely a gratuitous personal attack. Moreover but most strikingly, the municipal court had issued an enforcement order requiring two thirds of the applicant’s pension to be transferred to her lawyer’s bank account each month, notwithstanding that the applicable law had provided that that was the maximum that could be withheld, thus clearly leaving room for a more nuanced approach. By 30 June 2013 the applicant had paid a total of approximately 4,350 euros, but with accrued and future interest, she would have to continue with the payments for approximately another two years. In May 2012 her monthly pension was some 170 euros, so that after deductions she was left with approximately 60 euros on which to live and buy her monthly medication, which at approximately 44 euros, she could no longer afford. This, the Court found, was a particularly precarious situation for an older person suffering from a number of serious illnesses. Therefore, while the impugned measures had been prescribed by law and had been adopted in pursuit of a legitimate aim, namely for the protection of the reputation of another, this interference with the applicant’s right to freedom of expression had not been “necessary in a democratic society”. |
969 | Internet sites containing legal information | II. RELEVANT DOMESTIC LAW 19. Article 44 § 1 of the Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) provides that everyone has the right to freely obtain information disseminated for public use. 20. The Public Information Act ( Avaliku teabe seadus ) stipulates the conditions and procedure for accessing information that is obtained or created in the course of carrying out public duties. A request for information ( teabenõue ) may be made orally or in writing (section 13) and the holder of such information, subject to certain exceptions, must release the information in the manner requested by the person making the request (section 17). 21. Section 31-1 of the Imprisonment Act ( Vangistusseadus ), which entered into force on 1 June 2008, provides that prisoners are prohibited from using the Internet, except on computers specially adapted for said purpose by a prison which has allowed such access ( under the supervision of the prison authorities) to the official databases of legislation and the database of judicial decisions. This provision is still in force and has not been substantially amended. III. RELEVANT INTERNATIONAL INSTRUMENTS A. Council of Europe documents 22. The Rules of the Committee of Ministers for the supervisionof the execution of judgments and of the terms of friendly settlements, adopted by the Committee of Ministers on 10 May 2006 at the 964th meeting of the Ministers ’ Deputies, read as follows: Rule 6 – Information to the Committee of Ministers on the execution of the judgment “2. When supervising the execution of a judgment by the High Contracting Party concerned, pursuant to Article 46, paragraph 2, of the Convention, the Committee of Ministers shall examine: ... b. if required, and taking into account the discretion of the High Contracting Party concerned to choose the means necessary to comply with the judgment, whether: ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 26. The applicant complained that the authorities ’ refusal to grant him access to certain websites violated his right to receive information “ without interference by public authority ”, in breach of Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 27. The Government contested that argument. A. Admissibility 28. The Government considered that the application was manifestly ill-founded. They pointed out that the applicant could have requested access to the information contained on the websites in question by means other than through the Internet. 29. The applicant considered the Government ’ s argument not appropriate and contended that his wish to undertake legal research on the Internet sites in question in order to understand his rights was a very different matter from making specific requests to be sent the information in question. 30. The Court considers that the applicant ’ s complaint relates to his right to receive information and as such falls under Article 10 of the Convention. It considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 31. The applicant considered that the ban on his accessing the websites of the Council of Europe Information Office in Tallinn, the Chancellor of Justice and the Riigikogu violated his right to receive information and was in breach of Article 10 of the Convention. He submitted that he had been engaged in a number of court proceedings against the Estonian prison system. The information available on the websites in question was relied on by the Estonian courts; thus, the applicant also needed access to this information in order to be able to protect his rights. 32. The applicant pointed to the sheer scope of information accessible nowadays through the Internet (legal acts, case-law, parliamentary activities, newspapers, and so on). He argued that a ban on Internet access actually amounted to a total ban on access to information. 33. The applicant submitted that his aim was to be able to undertake legal research in order to understand his rights and obligations and in order to be able to defend his rights in court on an equal footing, if necessary. Undertaking legal research and making specific requests for information were two very different matters. His aim was to keep himself informed and to undertake legal research via the three above-mentioned websites. 34. The applicant rejected the Government ’ s arguments concerning the information-technology threats posed by the three websites in question. He argued that the authorised websites also contained references, search engines, links ( including links to social networks ), and so on. However, he noted that those links were effectively blocked by the Ministry of Justice server. Thus, there was no reason to distinguish the websites to which the applicant sought access from those to which access was already granted. 35. According to the applicant, the means that the Government suggested that he employ (as an alternative to using the Internet) to obtain the information that he sought were clumsy, roundabout and unreasonable. Furthermore, the total weight of belongings ( including paper documents ) that detainees were allowed to possess was limited to 30 kilograms. This restriction, along with a 21-page limit on free print-outs of documents, constituted a further restriction on prisoners ’ freedom of information. (b) The Government 36. The Government maintained that there had been no violation of Article 10 of the Convention. They argued that neither the Estonian Constitution nor the Convention prescribed that everyone should be entitled to obtain through the Internet information such as that in issue in the present case. The State had a discretion to restrict the right of specific groups of people (such as prisoners) to access information through specific channels. According to the Government, prisoners were not in a position comparable to that of persons at liberty. 37. The Government submitted that the restriction of prisoners ’ access to the Internet had a legal basis in section 31-1 of the Imprisonment Act. The aim of that provision was to maintain prison security and the safety of persons outside the prison, as well as the prevention of crime and the protection of victims. 38. The Government considered that the restriction was proportionate to the aims pursued. Granting access only to specific websites that constituted the official databases of legislation and the database of judicial decisions was justified by the demands of security. Making additional websites available and technically as secure as possible would incur additional expense. In view of the fact that all websites contained references, search engines, links ( including to social networks ), and the like, and having regard to the fact that websites were updated on a daily basis, it was impossible to completely avoid or prevent security vulnerabilities. It could not be ruled out, for technical reasons, that prisoners could misuse the Internet. Thus, granting prisoners access to additional websites would increase the risk that they might obtain information prejudicial to the realisation of the objectives of imprisonment. The effort needed to reduce the risks arising from such additional access – such risks could not be completely eliminated – would be excessive in comparison with the benefits gained by granting prisoners wider access to the Internet. Thus, the distinction between permitted and prohibited websites was a carefully weighed compromise between the applicant ’ s rights and public safety. 39. The Government pointed out that the restriction in question only concerned one channel of information and did not restrict the right of prisoners to engage in correspondence and make telephone calls as alternative ways of obtaining public information. Thus, the applicant was still able exercise his right to information under Article 10; the applicable legislation only restricted the possibility to obtain such information through the Internet. The Government also provided a detailed overview of the information contained on the websites in question and explained how the applicant could access it by means other than the Internet. 40. The Government noted that the website of the Council of Europe Information Office in Tallinn had been operational until 29 December 2010. Since 2010 the Ministry of Foreign Affairs had published retroactively Estonian translations of the Court ’ s judgments made in respect of Estonia and summaries in Estonian of key judgments made in respect of other countries. On 20 January 2012 the online version of Riigi Teataja had started publishing Estonian summaries of the judgments of the Court, and since 2013 it had also contained Estonian translations of all judgments in respect of Estonia. 2. The Court ’ s assessment 41. The Court has consistently recognised that the public has a right to receive information of general interest. Within this field, it has developed case-law in relation to press freedom, the purpose of which is to impart information and ideas on such matters. The Court has also found that the function of creating forums for public debate is not limited to the press. That function may also be exercised by non-governmental organisations, the activities of which are an essential element of informed public debate (see, for example, Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v. Austria, no. 39534/07, §§ 33-34, 28 November 2013, with further references). 42. Furthermore, the Court has held that the right to receive information basically prohibits a Government from preventing a person from receiving information that others wished or were willing to impart (see Leander v. Sweden, 26 March 1987, § 74, Series A no. 116). It has also held that the right to receive information cannot be construed as imposing on a State positive obligations to collect and disseminate information of its own motion (see Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998 ‑ I). 43. In the present case, however, the question in issue is not the authorities ’ refusal to release the requested information; the applicant ’ s request concerned information that was freely available in the public domain. Rather, the applicant ’ s complaint concerns a particular means of accessing the information in question : namely, that he, as a prisoner, wished to be granted access – specifically, via the Internet – to information published on certain websites. 44. In this connection, the Court reiterates that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general ( see Delfi AS v. Estonia [GC], no. 64569/09, § 133, ECHR 2015; Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012; and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009). 45. Nevertheless, the Court notes that imprisonment inevitably involves a number of restrictions on prisoners ’ communications with the outside world, including on their ability to receive information. It considers that Article 10 cannot be interpreted as imposing a general obligation to provide access to the Internet, or to specific Internet sites, for prisoners. However, it finds that in the circumstances of the case, since access to certain sites containing legal information is granted under Estonian law, the restriction of access to other sites that also contain legal information constitutes an interference with the right to receive information. 46. The Court observes that it is not in dispute that the restriction on prisoners ’ use of the Internet was based on the Imprisonment Act, which limits prisoners ’ Internet access to the official databases of legislation and the database of judicial decisions. Internet access beyond the authorised websites was prohibited. The Court is thus satisfied that the interference at issue was “prescribed by law” within the meaning of Article 10 § 2 of the Convention. 47. Furthermore, the Court accepts the Government ’ s argument that the interference in question served the aims of the protection of the rights of others and the prevention of disorder and crime. 48. As regards the issue of whether the interference was “necessary” within the meaning of Article 10 § 2, the Court notes that according to the Government, granting prisoners access to a greater number of Internet sites would have increased security risks and required the allocation of additional material and human resources in order to mitigate such risks. By contrast, the applicant was of the opinion that allowing access to three more websites ( in addition to those already authorised ) would not have given rise to any additional security issues. Possible security issues were already effectively managed by the Ministry of Justice, which blocked any links or other such features on already authorised websites that could cause security concerns; there was no reason, according to the applicant, why this should be different in the case of the three requested additional websites. 49. The Court reiterates that under section 31-1 of the Imprisonment Act, prisoners are granted limited access to the Internet – including access to the official databases of legislation and the database of judicial decisions available on the Internet. 50. The Court notes that the websites of the Council of Europe Information Office in Tallinn, the Chancellor of Justice, and the Riigikogu, to which the applicant wished to have access, predominantly contained legal information and information related to fundamental rights, including the rights of prisoners. For example, the website of the Riigikogu contained bills together with explanatory memoranda to them, verbatim records of the sittings of the Riigikogu, and minutes of committee sittings. The website of the Chancellor of Justice (who is also an ombudsman in Estonia) contained his selected legal opinions. The Court considers that the accessibility of such information promotes public awareness and respect for human rights and gives weight to the applicant ’ s argument that the Estonian courts used such information and the applicant needed access to it for the protection of his rights in the court proceedings. The Court has also taken note of the applicant ’ s argument that legal research in the form of browsing through available information (in order to find relevant information) and making specific requests for information were different matters and that the websites were meant for legal researches rather than making specific requests. Indeed, in order to make a specific request one would need to be aware of which particular information is available in the first place. The Court also notes that the domestic authorities have referred to alternative means of making available to the applicant the information stored on the websites in question (for example, by mail – see paragraph 17 above), but did not compare the costs of these alternative means with the additional costs that extended Internet access would allegedly incur. 51. The Court further notes that in the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements, publication of the Court ’ s judgments in the language of the respondent State is mentioned as an example of the general measures to be taken in order to execute judgments (see paragraph 22 above). The Court notes, in this connection, that when the applicant lodged his complaint with the domestic courts, the Estonian translations and summaries of the Court ’ s judgments were only available on the website of the Council of Europe Information Office and it was only later that this information was published elsewhere – in the online version of Riigi Teataja (see paragraph 40 above). 52. The Court cannot overlook the fact that in a number of Council of Europe and other international instruments the public-service value of the Internet and its importance for the enjoyment of a range of human rights has been recognised. Internet access has increasingly been understood as a right, and calls have been made to develop effective policies to attain universal access to the Internet and to overcome the “digital divide” (see paragraphs 23 to 25 above). The Court considers that these developments reflect the important role the Internet plays in people ’ s everyday lives. Indeed, an increasing amount of services and information is only available on the Internet, as evidenced by the fact that in Estonia the official publication of legal acts effectively takes place via the online version of Riigi Teataja and no longer through its paper version (see paragraph 7 above). The Court reiterates that the online version of Riigi Teataja also currently carries Estonian summaries and Estonian translations of the Court ’ s judgments (see paragraph 40 above). 53. Lastly, the Court reiterates that under the Imprisonment Act the prisoners have been granted limited access to the Internet via computers specially adapted for that purpose and under the supervision of the prison authorities. Thus, the Court observes that arrangements necessary for the use of the Internet by prisoners have in any event been made and the related costs have been borne by the authorities. While the security and economic considerations cited by the domestic authorities may be considered as relevant, the Court notes that the domestic courts undertook no detailed analysis as to the security risks allegedly emerging from the access to the three additional websites in question, also having regard to the fact that these were websites of State authorities and of an international organisation. The Supreme Court limited its analysis on this point to a rather general statement that granting access to additional Internet sites could increase the risk of detainees engaging in prohibited communication, thus giving rise to the need for increased levels of monitoring. The Court also considers that the Supreme Court and the Government have failed to convincingly demonstrate that giving the applicant access to three additional websites would have caused any noteworthy additional costs. In these circumstances, the Court is not persuaded that sufficient reasons have been put forward in the present case to justify the interference with the applicant ’ s right to receive information. 54. The Court concludes that the interference with the applicant ’ s right to receive information, in the specific circumstances of the present case, cannot be regarded as having been necessary in a democratic society. There has accordingly been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 55. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 56. The applicant claimed compensation for the non-pecuniary damage he had sustained as a result of the alleged violation of his rights and asked the Court to determine a fair level of compensation. 57. The Government considered that given that the Convention had not been violated in respect of the applicant, there was no basis for awarding any compensation. Furthermore, they submitted that, should the Court find a violation of the applicant ’ s rights, such a finding would in itself constitute sufficient just satisfaction. 58. The Court considers that in the circumstances of this case the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. B. Costs and expenses 59. The applicant claimed reimbursement of courier costs, without specifying the sum claimed. 60. The Government asked the Court to reject this claim as the sum had not been specified and no evidence regarding the costs borne had been submitted. 61. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. However, in the present case the applicant failed to submit documentary evidence proving his costs and expenses. Therefore, the Court rejects the claim for costs and expenses. | The Court held that there had been a violation of Article 10 of the Convention, finding that the refusal to grant the applicant access to Internet websites containing legal information had breached his right to receive information. The Court noted in particular that Contracting States are not obliged to grant prisoners access to Internet. It found, however, that if a State was willing to allow prisoners access, as was the case in Estonia, it had to give reasons for refusing access to specific sites. In the specific circumstances of the applicant’s case, the reasons, namely the security and costs implications, for not allowing him access to the Internet sites in question had not been sufficient to justify the interference with his right to receive information. Notably, the authorities had already made security arrangements for prisoners’ use of Internet via computers specially adapted for that purpose and under the supervision of the prison authorities and had borne the related costs. Indeed, the domestic courts had undertaken no detailed analysis as to the possible security risks of access to the three additional websites in question, bearing in mind that they were run by an international organisation and by the State itself. |
215 | Access to a lawyer | II. RELEVANT DOMESTIC LAW AND INTERNATIONAL STANDARDS A Rights of the accused 38. Article 11 (4) of the Constitution of the Republic of Cyprus provides as follows: “Every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing.” 39. Article 12 (4) and (5) of the Constitution provides, in so far as relevant, as follows: (4) “Every person charged with an offence shall be presumed innocent until proved guilty according to law. (5) Every person charged with an offence has the following minimum rights: (a) to be informed promptly and in a language which he understands and in detail of the nature and grounds of the charge preferred against him; (b) to have adequate time and facilities for the preparation of his defence; ...” B. Right to a fair trial 40. Article 30 (2) and (3) provides, in so far as relevant, as follows: (2) “In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. ... (3) Every person has the right: (a) to be informed of the reasons why he is required to appear before the court; (b) to present his case before the court and to have sufficient time necessary for its preparation....”. C. International Covenant on Civil and Political Rights 1966 (“ICCPR”) 41. The ICCPR provides in Article 14(4), which broadly corresponds to Article 6 of the European Convention, that: “In the case of juvenile persons, the procedure shall be such as will take account of their age, and the desirability of promoting their rehabilitation.” D. Treatment of a suspect 1. Domestic law 42. Section 8 of the Criminal Procedure Law, Cap. 155 provides as follows: “Without prejudice to the generality of section 3 of this Law and without prejudice to the operation of section 5 of this Law the rules for the time being approved by Her Majesty ’ s Judges of the Queen ’ s Bench Division in England relating to the taking of statements by police officers (known as ‘ The Judges ’ Rules ’ ) shall apply to the taking of statements in the Colony as they apply to the taking of statements in England”. 43. Section 13 of the Criminal Procedure Law, Cap. 155 provides, in so far as relevant, as follows: “ ... Any [arrested] person while in custody shall be given reasonable facilities for obtaining legal advice, for taking steps to obtain bail and otherwise for making arrangements for his defence or release.” 44. Rule II of the Judges ’ Rules provides as follows: “As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence. The caution shall be in the following terms: ‘ You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence. ’ ” 2. Standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Ref: CPT/ inf /E (2002) 1_Rev.2006) 45. The CPT standards on police detention were set out in its 2 nd General Report [CPT/ Inf (92) 3] as follows: 36. The CPT attaches particular importance to three rights for persons detained by the police: the right of the person concerned to have the fact of his detention notified to a third party of his choice (family member, friend, consulate), the right of access to a lawyer, and the right to request a medical examination by a doctor of his choice (in addition to any medical examination carried out by a doctor called by the police authorities). They are, in the CPT ’ s opinion, three fundamental safeguards against the ill-treatment of detained persons which should apply as from the very outset of deprivation of liberty, regardless of how it may be described under the legal system concerned (apprehension, arrest, etc). 37. Persons taken into police custody should be expressly informed without delay of all their rights, including those referred to in paragraph 36. Further, any possibilities offered to the authorities to delay the exercise of one or other of the latter rights in order to protect the interests of justice should be clearly defined and their application strictly limited in time. As regards more particularly the rights of access to a lawyer and to request a medical examination by a doctor other than one called by the police, systems whereby, exceptionally, lawyers and doctors can be chosen from pre-established lists drawn up in agreement with the relevant professional organisations should remove any need to delay the exercise of these rights. 38. Access to a lawyer for persons in police custody should include the right to contact and to be visited by the lawyer (in both cases under conditions guaranteeing the confidentiality of their discussions) as well as, in principle, the right for the person concerned to have the lawyer present during interrogation. 46. The CPT standards on juveniles deprived of their liberty were set out in the CPT ’ s 9 th General Report [CPT/ Inf (99) 12] as follows: “ In this context, the CPT has stressed that it is during the period immediately following deprivation of liberty that the risk of torture and ill-treatment is at its greatest. It follows that it is essential that all persons deprived of their liberty (including juveniles) enjoy, as from the moment when they are first obliged to remain with the police, the right to notify a relative or another third party of the fact of their detention, the right of access to a lawyer and the right of access to a doctor.” E. Treatment of an accused ’ s confession under the national law 47. In Vouniotis v. The Republic (1975) 2 C.L.R. 34 the Supreme Court held that the court should verify the truthfulness of a confession by independent evidence. In this case the following extracts from R v Sykes 8 Cr. App. Rev. were cited with approval: “A man may be convicted on his own confession alone; there is no law against it ... the first question [to be asked] when ... examining the confession of a man, is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? ... Is it [the confession] consistent with other facts which have been ascertained and which have been, as in this case, proved before us? ... ” 48. In the case of Kafkaris v. The Republic (1990) 2 CLR 203, the following was stated: “A confession of a crime – so long as it is accepted as voluntary – can on its own constitute sufficient ground for an accused ’ s conviction. No matter how voluntary a confession is, it is prudent, in accordance with the case-law ... to have, where possible, corroborating evidence in support of the accuracy of its content. That would exclude the possibility of error and discourage the interrogating authorities to seek a confession as an easy alternative to having a crime properly investigated. The content of a confession must be judged not only on the basis of the authenticity of the allegations it contains, but also in conjunction with any other testimony that tends to support or disprove the accuracy of its content.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 49. The applicant made a number of complaints concerning the fairness of the various stages of the criminal proceedings under Article 6 of the Convention, which reads, in so far as relevant, as follows: “1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ... ” 50. With regard to the pre-trial stage of the proceedings, the applicant complained that he had not been informed of his right to consult a lawyer prior to being questioned and submitting his statement and that he had not been provided with an adequate opportunity to find a lawyer at that stage. This had been particularly detrimental for his defence given that he was a minor at the time and had not even been questioned by the police in the presence of his guardian. He further complained that he had not been adequately warned of his right to remain silent. 51. The applicant also complained that he had not received a fair trial by the Assize Court given its acceptance of his confession, the admission of other evidence attempting to show his “bad character ” and concerning his involvement in other criminal investigations, and the continual interferences by the court in the conduct of the trial which ended in a direct conflict with the applicant ’ s lawyer. His lawyer ’ s subsequent conviction and imprisonment for contempt of court had inhibited the lawyer ’ s ability to defend the applicant (see, for the relevant facts, Kyprianou v. Cyprus [GC], no. 73797/01, ECHR 2005 ‑ ... ). 52. Finally, the applicant complained that there was no third- instance appeal jurisdiction in Cyprus to review the lawfulness of the findings of the Supreme Court on appeal. 53. The Government contested the applicant ’ s arguments in their entirety. A. Admissibility 54. The Court considers that the complaints concerning the pre-trial stage of the proceedings and the fairness of the trial at first instance and on appeal raise questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No other ground for declaring them inadmissible has been established. These complaints must therefore be declared admissible. 55. In connection with the applicant ’ s complaint, concerning the lack of a third level of jurisdiction in Cyprus to which the soundness and lawfulness of the judgments of the Supreme Court on appeal could be challenged, the Court considers that it falls to be examined under Article 2 of Protocol No. 7 of the Convention. The Court observes that the applicant, following his conviction and sentence by the Assize Court, appealed to the Supreme Court, which dealt with his elaborate grounds of appeal providing adequate reasoning for its findings. The applicant therefore had his conviction and sentence reviewed by a higher tribunal in conformity with Article 2 of Protocol No. 7. In this connection, the Court notes that neither this provision nor any other provision of the Convention or its Protocols guarantees a right to have a case heard by three judicial instances. 56. Accordingly, this complaint is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. B. Merits 1. Complaints concerning the pre-trial stage of the proceedings (a) The Government 57. The Government maintained that the police had drawn the applicant ’ s attention to his right to remain silent on three occasions : at the time of his arrest, when he was taken for questioning and before his written statement was taken. In particular, the applicant had been warned in accordance with the wording of Rule II of the Judges ’ Rules which apply in Cyprus by virtue of section 8 of the Criminal Procedure Law. 58. The Government stated that the testimony of the witnesses for the prosecution concerning the events at the pre-trial stage of the proceedings had been accepted by the Assize Court both in the trial within a trial and in the main proceedings. They noted that in the trial within a trial the prosecution had succeeded in proving beyond all reasonable doubt that the applicant ’ s confession, given shortly after his arrest, had been voluntary. 59. Although the applicant ’ s father, who was acting at the time as the applicant ’ s guardian, had been made fully aware of the seriousness of the case and had been prompted to appoint a lawyer immediately after the applicant was taken for questioning, the father did not appoint a lawyer and preferred not to be present when the applicant gave his written statement to the police. Moreover, neither the applicant nor his father had requested the assistance of a lawyer to which they were entitled from the initial stages of the investigation in accordance with domestic law. Had they requested such services, access to a lawyer would have been granted. There had therefore been no denial of the applicant ’ s rights in this respect and he had benefited from the assistance of a lawyer from the day following his arrest and throughout the proceedings. 60. In the light of the entirety of the proceedings, the absence of legal assistance on the day of the applicant ’ s arrest had not deprived him of a fair hearing. The applicant had had every opportunity under domestic law to challenge the voluntary nature and admissibility of his written statement in the subsequent proceedings. He had been represented by counsel and had the witnesses of the prosecution cross-examined, whereas the burden of satisfying the court as to the voluntary character of the confession, to the requisite criminal standard of proof, had remained with the prosecution. 61. The applicant ’ s father, being at the time the applicant ’ s guardian, had by his conduct unequivocally waived the applicant ’ s right to have the assistance of a lawyer at the pre-trial stage of the proceedings. The Government could not be held accountable in the present circumstances for the applicant ’ s failure to exercise his right in this respect. (b) The applicant 62. The applicant maintained that he had not been advised to find a lawyer before he was taken for questioning, and that his father had only been advised to do so while the applicant was being questioned. The applicant, being underage at the time, had been unable to comprehend the seriousness of the matter and was totally unaware of the fact that had he asked for a lawyer the police questioning could have been deferred pending the lawyer ’ s arrival. Moreover, his father had been unable to respond and request a lawyer for his son immediately as according to the testimonies of the police officers he had been “ stunned, shocked and unable to speak ”. 63. Moreover, due respect by the State of the applicant ’ s rights required that he himself be advised of his right to consult a lawyer upon his arrest. If the police considered him mature enough to be arrested, taken for questioning alone, and able to make a statement to the police without the presence of his father or a lawyer, it was their duty to explain directly to the applicant that he had the right to consult a lawyer upon his arrest and that he was entitled to legal aid. (c) The Court ’ s assessment 64. At the outset the Court observes that, even if the primary purpose of Article 6, as far as criminal matters are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its requirements (see Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR 2005 ‑ IV, and Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275 ). The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. In order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case ( Imbrioscia, cited above, § 38). 65. Moreover, the Court reiterates that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 ( see John Murray v. the United Kingdom, 8 February 1996, § 45, Reports of Judgments and Decisions 1996 ‑ I, and Funke v. France, 25 February 1993, § 44, Series A no. 256 ‑ A ). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, Saunders v. the United Kingdom, 17 December 1996, § 68, Reports 1996 ‑ VI; Heaney and McGuinness v. Ireland, no. 34720/97, § 40, ECHR 2000 ‑ XII; J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III; and Allan v. the United Kingdom, no. 48539/99, § 44, ECHR 2002-IX ). In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention. 66. As regards the applicant ’ s complaints which concern the lack of legal consultation at the pre-trial stage of the proceedings, the Court observes that the concept of fairness enshrined in Article 6 requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation. The lack of legal assistance during an applicant ’ s interrogation would constitute a restriction of his defence rights in the absence of compelling reasons that do not prejudice the overall fairness of the proceedings. 67. The Court notes that the applicant was 17 years old at the material time. In its case-law on Article 6 the Court has held that when criminal charges are brought against a child, it is essential that he be dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings (see T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, § 84 ). The right of an accused minor to effective participation in his or her criminal trial requires that he be dealt with with due regard to his vulnerability and capacities from the first stages of his involvement in a criminal investigation and, in particular, during any questioning by the police. The authorities must take steps to reduce as far as possible his feelings of intimidation and inhibition (see, mutatis mutandis, T. v. the United Kingdom, cited above, § 85) and ensure that the accused minor has a broad understanding of the nature of the investigation, of what is at stake for him or her, including the significance of any penalty which may be imposed as well as of his rights of defence and, in particular, of his right to remain silent ( mutatis mutandis, S.C. v. the United Kingdom, no. 60958/00, § 29, ECHR 2004 ‑ IV ). It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said by the arresting officer and during his questioning by the police ( ibid ). 68. The Court reiterates that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver ’ s importance ( Håkansson and Sturesson v. Sweden, 21 February 1990, Series A No. 171, § 66, and most recently Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ ... ). Moreover, before an accused can be said to have impliedly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey, no. 324 32/96, 27 March 2007, § 59, and Jones v. the United Kingdom ( dec .), no. 30900/02, 9 September 2003). The Court considers that given the vulnerability of an accused minor and the imbalance of power to which he is subjected by the very nature of criminal proceedings, a waiver by him or on his behalf of an important right under Article 6 can only be accepted where it is expressed in an unequivocal manner after the authorities have taken all reasonable steps to ensure that he or she is fully aware of his rights of defence and can appreciate, as far as possible, the consequence of his conduct. 69. Having examined all the material submitted by the parties and, in particular, the testimonies submitted in the first-instance proceedings as recorded in the relevant transcript, the Court makes the following findings as to the sequence of events concerning the applicant ’ s confession. The applicant, who was a minor at the relevant time, visited the Police Director ’ s office together with his father. The Police Director explained to the father, in the applicant ’ s presence, that the police were investigating a murder and robbery, that there was evidence linking the applicant with the commission of these crimes and that an arrest warrant had been issued against him. The arresting officer then entered the Director ’ s office, showed the arrest warrant and arrested the applicant. During his arrest, the applicant was “cautioned” within the meaning of the relevant Judges Rules (see paragraph 44 above). He was therefore told that he was not obliged to say anything and that anything he did say could be used in subsequent court proceedings. The applicant was then taken into a separate room for questioning. The applicant ’ s father was concerned that the police might use force against the applicant and the Director reassured him that no such practices would be used. He explained that the case was serious and that they should seek the assistance of a lawyer. A few minutes later and while the applicant was already being questioned, they were informed that the applicant had confessed his guilt. The Director suggested that the applicant ’ s father join the applicant in the interview room so that he could hear himself what the applicant had admitted. The applicant ’ s father preferred to wait outside. The applicant was cautioned before his written statement confessing his guilt was taken by a police officer. 70. The Court observes that the Government did not dispute the fact that the applicant was not offered legal assistance and that the suggestion to find a lawyer was only put to the applicant ’ s father while the applicant was being interrogated. The Court considers that the authorities ’ treatment of the applicant ranged from treating him as a minor and, as such, addressing his father to explain the seriousness of the case and describe the evidence existing against the applicant, to approaching him as a person capable of being questioned in the absence of his guardian, without informing him of his right to consult a lawyer before proceeding to make any statement. Neither the applicant nor his father were adequately informed of the applicant ’ s rights to legal representation before the applicant ’ s questioning. Moreover, the applicant ’ s father was not invited to accompany the applicant during his initial questioning nor was any other person who would be in a position to assist the applicant to understand the proceedings. The applicant himself was not advised that he could see a lawyer before saying anything to the police and before he had his written statement taken. 71. In view of the above the Court considers that it was unlikely, given the applicant ’ s age, that he was aware that he was entitled to legal representation before making any statement to the police. Moreover given the lack of assistance by a lawyer or his guardian, it was also unlikely that he could reasonably appreciate the consequences of his proceeding to be questioned without the assistance of a lawyer in criminal proceedings concerning the investigation of a murder (see Talat Tunç, cited above, § 60). 72. The Court takes note of the Government ’ s argument that the authorities had remained willing at all times to allow the applicant to be assisted by a lawyer if he so requested. It observes that the obstacles to the effective exercise of the rights of the defence could have been overcome if the domestic authorities, being conscious of the difficulties for the applicant, had actively ensured that he understood that he could request the assignment of a lawyer free of charge if necessary (see Talat Tunç, cited above, § 61, and Padalov v. Bulgaria, no. 54784/00, 10 August 2006, § 61 ). The passive approach adopted by the authorities in the present circumstances was clearly not sufficient to fulfil their positive obligation to furnish the applicant with the necessary information enabling him to access legal representation. 73. Accordingly, the Court finds that the lack of provision of sufficient information on the applicant ’ s right to consult a lawyer before his questioning by the police, especially given the fact that he was a minor at the time and not assisted by his guardian during the questioning, constituted a breach of the applicant ’ s defence rights. The Court moreover finds that neither the applicant nor his father acting on behalf of the applicant had waived the applicant ’ s right to receive legal representation prior to his interrogation in an explicit and unequivocal manner. 74. Concerning the applicant ’ s complaint as to his right to remain silent, the Court notes that the Government maintained that the applicant had been cautioned in accordance with domestic law both at the time of his arrest and before his written statement had been taken. The applicant did not dispute this. The Court notes that in accordance with domestic law the applicant was told that he was not obliged to say anything unless he wished to do so and that what he said could be put into writing and given in evidence in subsequent proceedings (see paragraph 44 above). The Court finds, given the circumstances of the present case, in which the applicant had been underage and was taken for questioning without his legal guardian and without being informed of his right to seek and obtain legal representation before he was questioned, that it was unlikely that a mere caution in the words provided for in the domestic law would be enough to enable him to sufficiently comprehend the nature of his rights. 75. Lastly, the Court considers that although the applicant had the benefit of adversarial proceedings in which he was represented by the lawyer of his choice, the nature of the detriment he suffered because of the breach of due process at the pre-trial stage of the proceedings was not remedied by the subsequent proceedings, in which his confession was treated as voluntary and was therefore held to be admissible as evidence. 76. In this connection the Court notes that despite the fact that the voluntariness of the applicant ’ s statement taken shortly after his arrest was challenged and formed the subject of a separate trial within the main trial, and although it was not the sole evidence on which the applicant ’ s conviction was based, it was nevertheless decisive for the prospects of the applicant ’ s defence and constituted a significant element on which his conviction was based. It is indicative in this respect that the Supreme Court found that throughout the course of the first- instance proceedings the applicant had consistently tried to negate his initial statement, an approach which had a great impact on the court ’ s assessment of his credibility. 77. In the light of the above considerations the Court concludes that there has been a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention on account of the lack of legal assistance to the applicant in the initial stages of police questioning. 2. Complaints concerning the use of the applicant ’ s confession and other evidence in the proceedings (a ) The domestic courts ’ reliance on the applicant ’ s confession 78. The applicant complained about the use made of his confession in the proceedings before the Assize Court resulting in his conviction which was upheld on appeal. 79. The Government did not make any submissions on this point. 80. The Court notes that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Jalloh v. Germany [GC], no. 54810/00, § 94, ECHR 2006 ‑ ..., and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV). 81. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; and Allan, cited above, § 42 ). The severity of the sentence that may be imposed upon the conclusion of the criminal proceedings would increase the level of due diligence that is required from the domestic authorities in this respect. 82. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubts on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, inter alia, Khan, cited above, §§ 35, 37, and Allan, cited above, § 43). 83. As for the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court reiterates that these are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (see paragraph 65 above). 84. Turning to the facts of the present case, the Court repeats its findings of a violation of the applicant ’ s rights of defence at the pre-trial stage of the proceedings due to the fact that, whilst being a minor, his questioning had taken place in the absence of his guardian and without him being sufficiently informed of his right to receive legal representation or of his right to remain silent. The Court notes that the applicant ’ s confession obtained in the above circumstances constituted a decisive element of the prosecution ’ s case against him that substantially inhibited the prospects of his defence at trial and which was not remedied by the subsequent proceedings. 85. The Court notes that in addition to the applicant ’ s confession his conviction was supported by his second statement admitting that he had kicked the victim, a testimony reporting the applicant ’ s statement that he had been involved in a serious fight with the victim and various testimonies confirming that the applicant had been drinking with the victim on the evening the victim died and that his clothes had been covered in mud in the early hours of the following morning. There was also medical evidence confirming that the cause of the victim ’ s death was multiple and violent blows. While it is not the Court ’ s role to examine whether the evidence in the present case was correctly assessed by the national courts, the Court considers that the conviction was based to a decisive extent on the applicant ’ s confession, corroborated largely by his second statement. It considers that the extent to which the second statement made by the applicant was tainted by the breach of his rights of defence due to the circumstances in which the confession had been taken was not addressed by the trial court and remains unclear. Moreover, the Court observes that having regard to the Assize Court ’ s acceptance of the applicant ’ s first statement, it appears that it would have been futile for him to contest the admissibility of his second statement. 86. In the light of the above considerations, the Court concludes that there has been a violation of Article 6 of the Convention because of the use in trial of the applicant ’ s confession obtained in circumstances which breached his rights to due process and thus irreparably undermined his rights of defence. (b) Admission of evidence of “bad character” 87. The applicant also complained that he had not received a fair trial given the admission in the main trial of evidence attempting to show his “bad character” and concerning his involvement in other criminal investigations. 88. The Court considers that the applicant ’ s submission was left undeveloped and unsubstantiated. Hence, it concludes that there has been no violation of Article 6 § 1 in this respect. 3. Complaints concerning the Assize Court ’ s treatment of counsel for the defence (a) The Government 89. The Government submitted that the applicant ’ s trial taken as a whole had been fair and in conformity with the Convention. They maintained that the Assize Court had been impartial towards the applicant throughout the criminal proceedings from both an objective and a subjective standpoint. The dispute between the applicant ’ s counsel and the court concerning certain behaviour of the counsel had been an isolated incident that had not had any impact on the objective examination of the case or on its outcome. Moreover, the applicant ’ s counsel had not applied to withdraw from the case following his conviction for contempt of court. 90. There was no evidence of bias against the applicant on the part of the Assize Court. The applicant had not submitted anything before the Court indicating any factor that could objectively raise a legitimate fear as to the impartiality of the judges in relation to the conduct of the proceedings and their findings. 91. The Assize Court had delivered a detailed and reasoned judgment with a thorough evaluation of the evidence put before it together with the position of the defence. Its interventions in the proceedings had not exceeded what was permissible in the circumstances. The Supreme Court had confirmed the findings of the Assize Court and found that the trial had been fair and the conviction and the sentence justified. (b) The applicant 92. The applicant submitted that his case could not be distinguished from the case that his lawyer had lodged with the Court and in which a violation of his lawyer ’ s rights under Articles 6 § § 1, 2 and 3 and 10 of the Convention had been found by this Court ’ s Grand Chamber ( see Kyprianou v. Cyprus, cited above ). He stated that his trial had been a continuous confrontation between the bench and his lawyer; a confrontation which had reached its climax with his lawyer ’ s trial, conviction for contempt of court and imprisonment. During the trial the Assize Court had made continual and clearly inappropriate interferences in the proceedings. It was indicative that his lawyer had requested permission to withdraw from the case since he felt unable to defend the applicant as a result of the court ’ s approach towards him; a request which was refused thus compelling him to continue defending the applicant against his will. Moreover, the applicant ’ s faith in his lawyer had been seriously undermined as a result of the contempt proceedings. 93. Following the contempt proceedings, his lawyer had felt unable to repeat the same request to withdraw from the case as the matter had already been decided upon by the Assize Court. He had nevertheless requested that the court withdraw from the further examination of the case in view of the events that had occurred. The request had again been refused and the trial had resumed in a climate which did not coincide with the requirements of a democratic society. (c) The Court ’ s assessment 94. The Court reiterates at the outset that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused (see Kyprianou v. Cyprus, cited above, § 118, and Padovani v. Italy, 26 February 1993, § 27, Series A no. 257-B). 95. The central question raised under this head of the applicant ’ s complaint is whether the nature of the Assize Court ’ s interferences with the defence counsel ’ s exercise of his duties, combined with the deficiencies found by the Grand Chamber of this Court as to the trial judges ’ treatment of the applicant ’ s lawyer, were such as to cast doubt on the fairness of the trial. 96. The Court notes that the applicant ’ s lawyer and the judges of the Assize Court engaged in various disagreements over the course of the applicant ’ s trial, and that the applicant ’ s lawyer had felt the need to request leave to withdraw from the proceedings due to the court ’ s interferences with his conduct of the applicant ’ s defence. His request was refused and he continued to represent the applicant. 97. The Court further notes that upon the resumption of the main trial following the contempt proceedings Mr Kyprianou felt that it was necessary for another lawyer to represent the applicant and request the court itself to withdraw from the further examination of the case. The request was refused as the Assize Court considered that no reasonable person could conclude that the applicant could have been prejudiced in any way by the contempt proceedings. 98. While the Court does not doubt that the judges of the Assize Court were determined to exercise their functions in an impartial manner, it reiterates that in its judgment in the Kyprianou case (cited above, § 133) it concluded that the judges ’ personal conduct had breached the subjective test of impartiality. In particular, the Court concluded from the manner in which the contempt proceedings were conducted, together with the decision and sentencing of Mr Kyprianou, that the court had failed to sufficiently detach itself from the facts of the case as the judges had been personally insulted by Mr Kyprianou ’ s comments. The Court considers that the personal conduct of the judges in the case undermined the applicant ’ s confidence that his trial would be conducted in a fair manner. Although the contempt proceedings were separate from the applicant ’ s main trial, the fact that the judges were offended by the applicant ’ s lawyer when he complained about the manner in which his cross-examination was received by the bench undermined the conduct of the applicant ’ s defence. 99. The Court also reiterates that in its judgment in the Kyprianou case (cited above, § 179) it found that although the conduct of the applicant ’ s lawyer could be regarded as disrespectful for the judges of the Assize Court, his comments were aimed at and were limited to the manner in which the judges were trying the case and, in particular, their allegedly insufficient attention to his cross-examination of a witness carried out in the course of defending the applicant. In this respect, the interference with the freedom of expression of the applicant ’ s lawyer in conducting the applicant ’ s defence, had breached Article 10 of the Convention ( ibid. , § 183). Moreover, the Court held that the sentence imposed on the applicant ’ s lawyer had been capable of having a “chilling effect” on the performance of the duties attached to lawyers when acting as defence counsel. 100. The Court finds that the refusal of Mr Kyprianou ’ s request for leave to withdraw from the proceedings due to the fact that he felt unable to continue defending the applicant in an effective manner exceeded, in the present circumstances, the limits of a proportionate response given the impact on the applicant ’ s rights of defence. Further, in the view of the Court, the Assize Court ’ s response to Mr Kyprianou ’ s discourteous criticism of the manner in which they were trying the case, which was to convict him immediately of contempt of court and impose a sentence of imprisonment on him, was also disproportionate. It further considers that the “chilling effect” on Mr Kyprianou ’ s performance of his duties as defence counsel was demonstrated by his insistence, upon the resumption of the proceedings, that another lawyer should address the court in respect of the request for the continuation of the proceedings before a different bench. 101. In these circumstances, the Court concludes that the Assize Court ’ s handling of the confrontation with the applicant ’ s defence counsel rendered the trial unfair. It follows that there has been a violation of Article 6 § 1 in this respect. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 102. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 103. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. It reiterates that when an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position that he would have been in had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Öcalan v. Turkey, cited above, § 210 in fine ). | The Court held that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention. In view of the circumstances, and especially given the applicant’s age and the fact that he had not assisted by his guardian during the questioning, it found that the lack of sufficient information on the applicant's right to consult a lawyer before his questioning by the police had constituted a breach of his defence rights. |
469 | Preliminary ruling | II. RELEVANT DOMESTIC AND EUROPEAN LAW A. The Judiciary (Organisation) Act 1. Section 80a of the Judiciary (Organisation) Act 17. Section 80a of the Judiciary (Organisation) Act entered into force on 1 July 2012. It provides as follows (references to other domestic legislation omitted): “1. The Supreme Court may, after having taken cognisance of the advisory opinion of the Procurator General (gehoord de procureur-generaal ), declare an appeal in cassation inadmissible if the complaints raised do not justify an examination in cassation proceedings (de aangevoerde klachten geen behandeling in cassatie rechtvaardigen), because the appellant party obviously has insufficient interest in the cassation appeal (klaarblijkelijk onvoldoende belang heeft bij het cassatieberoep) or because the complaints obviously cannot succeed (klaarblijkelijk niet tot cassatie kunnen leiden). 2. The Supreme Court shall not take a decision as referred to in the first paragraph without first having taken cognisance of: a. [in civil cases:] the summons or request [introducing the cassation appeal] ... and the memorandum in reply (conclusie van antwoord) or the statement of defence (verweerschrift), if submitted; b. [in criminal cases:] the written statement of the grounds of the cassation appeal (de schriftuur, houdende de middelen van cassatie) ...; or, as the case may be, c. [in tax cases:] the written statement introducing the cassation appeal (het beroepschrift waarbij beroep in cassatie wordt ingesteld) ... and the statement of defence, if submitted. 3. The cassation appeal shall be considered and decided by three members of a multi-judge Chamber (meervoudige kamer), one of whom shall act as president. 4. If the Supreme Court applies the first paragraph, it may, in stating the grounds for its decision, limit itself to that finding.” 2. Section 81 of the Judiciary (Organisation) Act 18. Section 81 of the Judiciary (Organisation) Act reads: “ 1. If the Supreme Court considers that a complaint does not constitute grounds for overturning the impugned judgment and does not give rise to the need for a determination of legal issues in the interests of legal uniformity and legal development, it may, in giving reasons for its decision on such complaint, limit itself to that finding. 2. The appeal in cassation shall be considered and determined by three members of a multi-judge Chamber (meervoudige kamer), one of whom shall act as president. ” 3. Relevant case-law 19. In a judgment of 11 September 2012 (ECLI:NL:HR:2012:BX0129) the Supreme Court clarified its understanding of sections 80a and 81 of the Judiciary (Organisation) Act as applicable in criminal cases, which reads, as far as relevant to the present case: “2.1.2. The explanatory memorandum ( memorie van toelichting ) to the Bill that led to this Act (Parliamentary Documents, Lower House of Parliament ( Kamerstukken II ) 2010/11, 32 576, no. 3), includes the following: ‘ 1. Introduction Aim pursued by the Bill This Bill aims to strengthen the role of the cassation procedure ( versterking van de cassatierechtspraak ) by establishing different and new requirements for lawyers who act as representatives before the Supreme Court and by introducing the possibility for the Supreme Court to declare inadmissible a cassation appeal at the beginning of the procedure. The Bill is intended to enable the Supreme Court to concentrate on its core tasks as a court of cassation. The adequate execution of these core tasks is under pressure as a result of cassation appeals being lodged in cases that do not lend themselves to a review in cassation, and because certain issues about which it would be desirable for the Supreme Court itself to pronounce do not reach the Supreme Court in time or at all. The establishment of quality requirements for counsel is aimed at ensuring that cassation appeals are accompanied by statements of grounds of appeal that are of decent quality. ... Accelerated inadmissibility Another measure [in addition to establishing new quality requirements for legal representatives] is the introduction of a mechanism for disposing of cases that goes beyond that of the current section 81 of the Judiciary (Organisation) Act. Section 81 of the Judiciary (Organisation) Act enables the Supreme Court to limit the reasoning of the rejection of a cassation grievance to the finding that the complaint raised therein “does not constitute grounds for overturning the impugned judgment and does not give rise to the need to determine legal issues in the interests of legal uniformity and legal development”. Section 81 of the Judiciary (Organisation) Act has in recent years played an important part in keeping the workload of the Supreme Court manageable. The Supreme Court now applies this provision in approximately half of its cases. However, the limits of its application are discernible. Moreover, section 81 is applied only at the end of cassation proceedings and, (invariably, in civil and criminal cases) after an advisory opinion from the Procurator General. However, the possibility of rejecting cases that have no prospect of success at an earlier stage of the proceedings and in a simple manner would constitute a considerable alleviation for the parties to the proceedings and the Supreme Court alike. ... Pursuant to Article 118 § 2 of the Constitution ( Grondwet ), the Supreme Court is charged, in the cases and within the limits prescribed by law, with overturning judicial decisions that are contrary to the law ( de cassatie van uitspraken wegens schending van het recht ). The Bill explicitly does not seek to change the Supreme Court ’ s task. Nor does [ the Bill] involve a leave-to-appeal system in which a court has to give prior permission before a legal remedy can be used. The freedom of parties to lodge cassation appeals remains unimpaired. What is new is the latitude given to the Supreme Court to declare an appeal inadmissible on the (substantive) finding that the grounds of appeal submitted do not justify a detailed review in cassation proceedings ( geen nadere beoordeling in cassatie rechtvaardigen ). The appeal may, for instance, be manifestly ill-founded ( klaarblijkelijke ongegrondheid ), because the impugned ruling rests on two grounds, each of which is capable of supporting the decision by itself but only one of which is challenged, or there may be a lack of interest, for example because a ground for the appeal, although well-founded, cannot, after the overturning of the impugned ruling, lead to an outcome other than the one to which that ruling had led. ’ ... 2.2.2. Section 80a of the Judiciary (Organisation) Act does, however, bring about a change in cases in which an omission hitherto necessitated the overturning of the impugned ruling, even though the person bringing the cassation appeal did not actually have a sufficient interest − deserving to be respected in law ( niet voldoende in rechte te respecteren belang ) − in such an overturning and a possible rehearing after remittal or referral of the case. In this context, it is to be noted that the mere possibility – regardless of the reason for which the appeal is considered well-founded – that in that situation a different, and possibly more advantageous, ruling could be given (for example, a reduction of sentence pursuant to the length of the proceedings before and after remittal or referral of the case, or in relation to changed personal circumstances) cannot be considered an interest that deserves to be upheld in law in cassation proceedings. ... Consequences for the content of the statement of grounds of appeal in cassation and the ‘ Borgers letter ’ 2.6.1. Pursuant to the second paragraph of section 80a of the Judiciary (Organisation) Act the Supreme Court will not issue a decision of the kind referred to in the first paragraph without first having taken cognisance of the written statement of grounds of appeal in cassation ... If the ‘ selection at the gate ’ ( selectie aan de poort ) which the legislature has introduced by way of section 80a of the Judiciary (Organisation) Act is to achieve its intended aim, then the lawyer who acts as legal representative, or the public prosecution service as the case may be, can reasonably be expected – in the words of the explanatory memorandum – to submit ‘ statements of grounds of appeal ... that are of decent quality ’. ... 2.6.3. Section 80a of the Judiciary (Organisation) Act provides that in the cases referred to therein, the Supreme Court may declare the cassation appeal inadmissible after having heard the Procurator General. It must be presumed that the Procurator General will express his point of view as to the applicability of section 80a of the Judiciary (Organisation) Act on a hearing day set by the judge in charge of the Supreme Court ’ s list of cases ( rolraadsheer ) and also that if the Procurator General is of the opinion that the case lends itself to the application of section 80a of the Judiciary (Organisation) Act, he will express this point of view in writing. In that case, counsel for the person by whom or on whose behalf the appeal has been lodged may respond in writing to that point of view within a period of two weeks thereafter.” 20. In its judgment of 26 May 2015 (ECLI:NL:HR:2015:1332) the Supreme Court explained its practice as regards the application of sections 80a and 81 of the Judiciary (Organisation) Act in relation to a request for referral to the CJEU made in that case. It held, as far as relevant to the present case: “2.1. The Supreme Court finds that the complaints raised do not justify an examination in cassation proceedings because the appellant party obviously has insufficient interest in the cassation appeal or because the complaints obviously cannot succeed. The Supreme Court will therefore – based on section 80a of the Judiciary (Organisation) Act and after having taken cognisance of the advisory opinion of the Procurator General − declare the appeal in cassation inadmissible. 2 .2.1. It is inherent therein ( daarin ligt besloten) that the request contained in the written grounds of appeal to put a preliminary question to the Court of Justice of the European Union cannot be granted (voor inwilliging vatbaar). The reasons are as follows. 2. 2.2. A judgment in which the appeal in cassation is declared inadmissible or dismissed by application of and with reference to section 80a or 81 of the Judiciary (Organisation) Act contains an abridged reasoning of that decision. Furthermore, such a judgment contains the conclusion that no issues arise that justify an examination in cassation proceedings or give rise to the need for a determination of issues in the interests of legal uniformity, legal development or legal protection. Since preliminary questions within the meaning of Article 267 of the Treaty on the Functioning of the European Union concern the interpretation of Community law and are issues of law (rechtsvragen), it is inherent in such a judgment that there is no need to put preliminary questions. The judgment also implies that the case in question concerns one of the situations where there is no need for such referral of preliminary questions, namely when the preliminary question raised is not relevant for the resolution of the dispute or can be answered in the light of the case-law of the Court of Justice [of the European Union] or that no reasonable doubt exists as to the manner in which the question concerning the rules of Community law was to be resolved. ” B. European Union law Article 267 of the Treaty on the Functioning of the European Union 21. Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) [2] provides as follows: “The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union ...; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.” 22. On 25 November 2016, the CJEU published its (updated) Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2016/C 439/01), which reads, as far as relevant to the present case: “3. The jurisdiction of the Court to give a preliminary ruling on the interpretation or validity of EU law is exercised exclusively on the initiative of the national courts and tribunals, whether or not the parties to the main proceedings have expressed the wish that a question be referred to the Court. In so far as it is called upon to assume responsibility for the subsequent judicial decision, it is for the national court or tribunal before which a dispute has been brought – and for that court or tribunal alone – to determine, in the light of the particular circumstances of each case, both the need for a request for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. ” Relevant case-law of the CJEU 23. In the case of S.r.l. CILFIT and Lanificio di Gavardo S.p.a. v. Ministry of Health ( C- 283/81, ECLI: EU:C:1982:335), the CJEU received a request from the Italian Court of Cassation for a preliminary ruling. This request concerned the question as to whether the third paragraph of Article 177 of the EEC Treaty [3] laid down an obligation to refer a matter which precluded the national court from determining whether the question raised was justified, or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt. 24. In its judgment of 6 October 1982 the CJEU explained, firstly, as follows: “... 6. The second paragraph of that article [ current Article 267] provides that any court or tribunal of a Member State may, if it considers that a decision on a question of interpretation is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. The third paragraph of that article provides that, where a question of interpretation is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. 7. That obligation to refer a matter to the Court of Justice is based on cooperation, established with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice. More particularly, the third paragraph of Article [267] seeks to prevent the occurrence within the Community of divergences in judicial decisions on questions of Community law. The scope of that obligation must therefore be assessed, in view of those objectives, by reference to the powers of the national courts, on the one hand, and those of the Court of Justice, on the other, where such a question of interpretation is raised within the meaning of Article [267]. 8. In this connection, it is necessary to define the meaning for the purposes of Community law of the expression ‘ where any such question is raised ’ in order to determine the circumstances in which a national court or tribunal against whose decisions there is no judicial remedy under national law is obliged to bring a matter before the Court of Justice. 9. In this regard, it must in the first place be pointed out that Article [267] does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article [267]. ...” 25. The CJEU went on to observe that courts or tribunals against whose decisions there was no judicial remedy had the same discretion as any other national court or tribunal to ascertain “whether a decision on a question of Community law [was] necessary to enable them to give judgment”. It concluded that they were not obliged to refer a question of interpretation of Community law raised before them in the following situations: (1) where the question was not relevant, in the sense that the answer to the question, regardless of what it might be, could in no way affect the outcome of the case; (2) where the question was materially identical to a question which had already been the subject of a preliminary ruling in a similar case, or where previous decisions of the Court had already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue were not strictly identical; or (3) where the correct application of Community law was so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised was to be resolved (bearing in mind that before it came to this conclusion the national court or tribunal had to be convinced that the matter was equally obvious to the courts of the other member States and to the Court of Justice, and only if those conditions were satisfied could the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it). 26. The judgment then concluded as follows (point 21): “... the third paragraph of Article [267] of the [Treaty on the Functioning of the European Union] is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court [ of Justice ], unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.” 27. In the case of György Katz v. István Roland Sós (C-404/07, ECLI:EU:C:2008:553 ), the CJEU delivered its judgment on 9 October 2008 which, as far as relevant to the present case, reads : “ 37. [ ... ] It is for the national court, not the parties to the main proceedings, to bring a matter before the Court of Justice. The right to determine the questions to be put to the Court thus devolves on the national court alone and the parties may not change their tenor [ ... ]. ” 28. In its judgment of 9 November 2010 in the case of VB Pénzügyi Lízing Zrt. v. Ference Schneider (C-137/08, ECLI:EU:C:2010:659), the CJEU stated, as far as relevant to the present case: “ 28. [ ... ] the system established by Article 267 TFEU with a view to ensuring that European Union law is interpreted uniformly throughout the Member States instituted direct cooperation between the Court of Justice and the national courts by means of a procedure which is completely independent of any initiative by the parties [ ... ].” 29. In the case of Lucio Cesare Aquino v. Belgische Staat (C-3/16, ECLI:EU:C:2017:209), the CJEU gave judgment on 15 March 2017, stating, as far as relevant to the present case: “43. It follows from the relationship between the second and third paragraphs of Article 267 TFEU that the courts referred to in the third paragraph have the same discretion as all other national courts as to whether a decision on a question of EU law is necessary to enable them to give judgment. They are not therefore obliged to refer a question of the interpretation of EU law raised before them if the question is not relevant, that is to say, if the answer to that question, whatever it may be, cannot have any effect on the outcome of the case [ ... ]. 44. Consequently, if in accordance with the procedural rules of the Member State concerned, the pleas in law raised before a court referred to in the third paragraph of Article 267 TFEU must be declared inadmissible, a request for a preliminary ruling cannot be regarded as necessary and relevant for that court to be able to give judgment.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 30. The applicant complained that the Supreme Court had refused to refer a question to the CJEU for a preliminary ruling, despite his request in that regard and, by only providing summary reasoning based on section 81 of, the Judiciary (Organisation) Act, had failed to provide adequate reasons for its refusal, in breach of his right to a fair hearing within the meaning of Article 6 § 1 of the Convention, which in its relevant part reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ” 31. The Government contested that argument. A. Admissibility 32. The applicability of Article 6 § 1 of the Convention was not in dispute between the parties, and the Court also has no doubt that the proceedings at issue fall within the scope of this provision. 33. The Government argued that the applicant had failed to exhaust all available domestic remedies by not bringing an action in tort ( onrechtmatige daad ) against the State before the civil courts on the grounds that the Supreme Court ’ s judgment was unlawful. According to the Government, since the alleged violation of Article 6 of the Convention occurred at the very last stage of the criminal proceedings in question, no domestic court had had the opportunity to consider the applicant ’ s claim that his rights under Article 6 had been violated by the Supreme Court ’ s summary reasoning, which should, therefore, have been argued before the civil courts. 34. The applicant contested this argument, pointing out that the Government had failed to provide evidence, through legal provisions or case-law, of such a civil action being available and effective both in theory and practice. According to the applicant, civil tort proceedings did not in fact constitute an effective remedy as they could never have resulted in the reopening of the criminal case against him. 35. The Court reiterates the relevant principles concerning exhaustion of domestic remedies set out in its judgment of 28 July 1999 in Selmouni v. France ([GC] no. 25803/94, §§ 74-77, ECHR 1999 ‑ V), including the principle that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. In their brief remarks about the remedy before the civil courts, the Government have not referred to any domestic case-law showing that that remedy would have been effective for the applicant ’ s complaint. In these circumstances, the application cannot be rejected for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. 36. The Court further finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Argument before the Court 37. The applicant alleged that the refusal of the Supreme Court to seek a preliminary ruling from the CJEU upon his request violated his rights under Article 6 of the Convention. He submitted that it follows from the Court ’ s case-law that the Supreme Court had a duty under Article 6 of the Convention to provide reasons for denying his request for a referral to the CJEU by indicating which of the Cilfit grounds (see paragraphs 23 - 26 above) was applicable, accompanied by an explanation. In the applicant ’ s view, a mere reference to section 81 of the Judiciary (Organisation) Act, as contended by the Government, could not be accepted as adequate in this regard. The applicant contested the Government ’ s argument that it followed from Hansen v. Norway ( no. 15319/09, 2 October 2014 ) that the refusal of a request for a preliminary ruling without providing specific reasons is compatible with Article 6 of the Convention when a legal provision allowing summary reasoning by an appellate court has been applied. He noted that Hansen did not concern a request for a preliminary ruling by the CJEU but a filtering procedure on appeal. Furthermore, according to the applicant, unless the Court unequivocally decided otherwise, the “ Cilfit obligation” was a special obligation to provide reasons, with its own requirements. 38. The Government argued that it could not be inferred from this Court ’ s case-law that Article 6 of the Convention requires domestic courts to refer a case to the CJEU or to provide specific reasons for refusing such a referral, irrespective of the content or grounds of that request. According to the Government, the duty to provide reasons when refusing to refer a question to the CJEU for a preliminary ruling is “a specific element of the general duty of courts to give reasoned decisions” and, referring to Hansen (cited above, § 80), an appellate court was not required to provide more detailed reasoning when it applied a specific legal provision to dismiss an appeal in cassation as having no prospects of success, without further explanation. Therefore, in the Government ’ s view, the Supreme Court ’ s judgment containing a summary reasoning based on section 81 of the Judiciary (Organisation) Act was compliant with Article 6 of the Convention and it should be read as that court ’ s conclusion that the applicant ’ s request for the referral of a question to the CJEU did not relate to a point of law that required answering. 2. The Court ’ s assessment 39. The Court recalls that it is for the national courts to interpret and apply domestic law, if applicable in conformity with EU law, and to decide on whether it is necessary to seek a preliminary ruling from the CJEU to enable them to give judgment. It reiterates that the Convention does not guarantee, as such, the right to have a case referred by a domestic court to another national court or to the CJEU for a preliminary ruling. The Court has previously observed that this matter is, however, not unconnected to Article 6 § 1 of the Convention since a domestic court ’ s refusal to grant a referral may, in certain circumstances, infringe the fairness of proceedings where the refusal proves to have been arbitrary. Such a refusal may be deemed arbitrary in cases where the applicable rules allow no exception to the granting of a referral or where the refusal is based on reasons other than those provided for by the rules, or where the refusal was not duly reasoned. Indeed, the right to a reasoned decision serves the general rule enshrined in the Convention which protects the individual from arbitrariness by demonstrating to the parties that they have been heard and obliges the courts to base their decision on objective reasons ( see Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, 20 September 2011, § § 54 -59). As the Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention (see, among many other authorities, mutatis mutandis, Roche v. the United Kingdom [GC], no. 32555/96, § 116, ECHR 2005-X). In the judicial sphere, those principles serve to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society (see Taxquet v. Belgium [GC], 16 November 2010, no. 926/05, § 90 and the cases cited therein ). 40. The obligation under Article 6 § 1 of the Convention for domestic courts to provide reasons for their judgments and decisions cannot, however, be understood to mean that a detailed answer to every argument is required. The extent to which the duty to provide reasons applies may vary according to the nature of the decision. It is necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question of whether or not a court has failed to fulfil the obligation to provide reasons − deriving from Article 6 of the Convention − can only be determined in the light of the circumstances of the case ( see Borovská and Forrai v. Slovakia, no. 48554/10, § 57, 25 November 2014; García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I; Kok v. the Netherlands (dec.), no. 43149/98, 4 July 2000; and Ruiz Torija v. Spain, no. 18390/91, § 29, 9 December 1994). 41. These principles are reflected in the Court ’ s case-law where the issue of due reasoning by domestic courts when refusing a request for a referral to the CJEU has been considered in the light of Article 6 § 1 of the Convention. 42. For example, the Court has held that where a request to obtain a preliminary ruling was insufficiently pleaded or where such a request was only formulated in broad or general terms, it is acceptable under Article 6 of the Convention for national superior courts to dismiss the complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue ( see John v. Germany ( dec .) no. 15073/03, 13 February 2007) or for lack of prospects of success without dealing explicitly with the request ( see Wallishauser v. Austria (No. 2), no. 14497/06, § 85, 20 June 2013; see also Rutar Marketing D.O.O. v. Slovenia (dec. ), no. 62020/11, § 22, 15 April 2014 and Moosbrugger v. Austria, no.44861/98, 25 January 2000 ). 43. Furthermore, in the case of Stichting Mothers of Srebrenica and others v. the Netherlands ( no. 65542/12, § 173, ECHR 2013 ) the Court found that the summary reasoning used by the Supreme Court to refuse a request for a preliminary ruling was sufficient, pointing out that it followed already from a conclusion reached in another part of the Supreme Court ’ s judgment that a request to the CJEU for a preliminary ruling was redundant. In Astikos Kai Paratheristikos Oikodomikos Synetairismos Axiomatikon and Karagiorgos v. Greece ( (dec.), nos. 29382/16 and 489/17, § 47, 9 May 2017 ) the Court observed that the preliminary ruling requested by the applicant in that case would not have changed the conclusion reached by the Council of State of Greece since his appeal had been declared inadmissible due to the non-compliance with statutory requirements for the admissibility of appeal. 44. In other cases, not concerning a context of domestic accelerated proceedings, the Court has held that national courts against whose decisions there is no remedy under national law are obliged to give reasons for their refusal in the light of the exceptions provided for in the case-law of the CJEU ( Ullens de Schooten and Rezabek, cited above, § 62 ). In Dhahbi v. Italy (no. 17120 /09, § 31, 8 April 2014; see also Schipani and others v. Italy, no. 38369/09, § 42, 21 July 2015), the Court formulated the following principles regarding the domestic courts ’ duty under Article 6 of the Convention when a request is made for a referral to the CJEU for a preliminary ruling, and where the request was accompanied by a due argumentation : “ ... Article 6 § 1 requires domestic courts to provide reasons, in the light of the applicable law, for any decision refusing to refer a question for a preliminary ruling; – when the Court hears a complaint alleging a violation of Article 6 § 1 on this basis, its task consists in ensuring that the impugned refusal was duly accompanied by such reasoning; – whilst this verification has to be carried out in a thorough manner, it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law; and – in the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (current Article 267 of the TFEU), this means that national courts against whose decisions there is no judicial remedy under national law, and which refuse to request a preliminary ruling from the CJEU on a question raised before them concerning the interpretation of EU law, are required to give reasons for such refusal in the light of the exceptions provided for by the case-law of the CJEU. They must therefore indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. ” 45. Turning to the present case, the Court observes that the Supreme Court partly dismissed the applicant ’ s appeal in cassation, including his request for a referral to the CJEU for a preliminary ruling, using a summary reasoning based on section 81 of the Judiciary (Organisation) Act (see paragraph 15 above). It is the applicant ’ s contention that Article 6 § 1 of the Convention militated against the Supreme Court ’ s confining itself to that summary reasoning in respect of his request for a referral of a question to the CJEU. 46. The Court recalls that it has previously held that it is acceptable under Article 6 § 1 of the Convention for national superior courts to dismiss a complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue (see John, cited above ). It has also considered that it is likewise not contrary to that provision for these courts to dismiss an appeal on points of law as having no prospect of success, without further explanation ( see Wnuk v. Poland (dec.), no. 38308/05, 1 September 2009, and Gorou v. Greece (no.2) [GC], no. 12686/03, § 41, 20 March 2009). This principle was reiterated by the Court in Talmane v. Latvia ( no. 47938/07, § 29, 13 October 2016 with further references ). It must, also in this context, ascertain that decisions of national courts are not flawed by arbitrariness or otherwise manifestly unreasonable, this being the limit of the Court ’ s competence in assessing whether domestic law has been correctly interpreted and applied (see Talmane, cited above, § 31). 47. The Court accepts that, in line with the aim of the legislature (see paragraph 19 above), section 81 of the Judiciary (Organisation) Act ‒ which allows the Supreme Court to dismiss an appeal in cassation for not constituting grounds for overturning the impugned judgment and not giving rise to the need for a determination of legal issues ‒ and section 80a of the same Act ‒ which allows the Supreme Court to declare an appeal in cassation inadmissible for not having any prospect of success ‒ are aimed at keeping the length of proceedings reasonable and also allow courts of cassation or similar judicial bodies to concentrate efficiently on their core tasks, such as ensuring the uniform application and correct interpretation of the law. 48. Taking into account the Supreme Court ’ s explanation that it is inherent in a judgment in which the appeal in cassation is declared inadmissible or dismissed by application of and with reference to section 80a or 81 of the Judiciary (Organisation) Act that there is no need to seek a preliminary ruling since the matter did not raise a legal issue that needed to be determined (see paragraph 20 above ), the Court furthermore accepts that the summary reasoning contained in such a judgment implies an acknowledgment that a referral to the CJEU could not lead to a different outcome in the case. 49. The Court also notes that the CJEU has ruled that the domestic courts referred to in the third paragraph of Article 267 TFEU are not obliged to refer a question about the interpretation of EU law raised before them if the question is not relevant, that is to say, if the answer to that question, whatever it may be, cannot have any effect on the outcome of the case (see paragraph 29 above ). 50. The Court therefore considers that, in the context of accelerated procedures within the meaning of section 80a or 81 of the Judiciary (Organisation) Act, no issue of principle arises under Article 6 § 1 of the Convention when an appeal in cassation which includes a request for referral is declared inadmissible or dismissed with a summary reasoning where it is clear from the circumstances of the case that the decision is not arbitrary or otherwise manifestly unreasonable (see paragraph 46 above ). 51. The Court observes that pursuant to section 81(2) of the Judiciary (Organisation) Act (see paragraph 18 above), an appeal in cassation is considered and decided by three members of the Supreme Court. The Court further observes that, in the case at hand, the applicant ’ s request for a question to be referred to the CJEU, which he raised in his written reply to the Advocate General ’ s advisory opinion, was dismissed by the Supreme Court with summary reasoning on the basis of section 81 of the Judiciary (Organisation) Act, after having taken cognisance of the applicant ’ s written grounds of appeal, and both the Advocate General ’ s advisory opinion and the applicant ’ s written reply thereto (see paragraph 14 above ). 52. In these circumstances the Court is satisfied that the Supreme Court has duly examined the grounds of the applicant ’ s appeal on points of law. The Court can thus discern no appearance of unfairness in the proceedings before the Supreme Court. 53. There has accordingly been no violation of Article 6 § 1 of the Convention. | The Court held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention. It found in particular that in the context of accelerated procedures it was acceptable under Article 6 § 1 for an appeal in cassation which included a request for referral to be declared inadmissible or dismissed with a summary reasoning when it was clear from the circumstances of the case that the decision was not arbitrary or otherwise manifestly unreasonable. |
916 | Tribunal established by law | RELEVANT LEGAL FRAMEWORK AND PRACTICE Material RELEVANT TO the Article 6 § 1 complaint 93. The domestic, international and EU law relevant to the applicant’s complaint concerning the premature termination of his term of office as a judicial member of the NCJ was set out in Grzęda v. Poland ([GC], no. 43572/18, §§ 64-169, 15 March 2022). Material RELEVANT TO the Article 10 complaintDomestic lawThe Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”) Domestic lawThe Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”) The Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”) Domestic lawThe Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”) The Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”) The Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”) 94. The Central Anti ‑ corruption Bureau was established as a special service to combat corruption, in particular in the State and local government institutions, as well as to combat activities detrimental to the economic interests of the State (section 1 of the CBA Act). 95. In accordance with section 2(1)(5) of the CBA Act, its competences include the verification of the accuracy and veracity of financial declarations submitted by persons holding public office. Under section 23(1) and (4) of the CBA Act, it can obtain, subject to a court’s approval, information from banks and other financial institutions concerning a person whose financial declaration is under examination. 96. Section 33(1) of the CBA Act provides that an audit can be carried out in accordance with the audit programme authorised by the Head of the CBA or its deputy. Under section 33(3) of the Act an audit is carried out by the CBA officers on the basis of their service card and a personal authorisation issued by the Head of the CBA. Financial declarations of judges 97. In accordance with section 87(1) of the Act on the Organisation of Ordinary Courts ( Ustawa o ustroju sądów powszechnych ), in its version applicable at the relevant time, judges are required to submit a financial declaration which concerns their personal property and property covered by a joint matrimonial regime to a competent President of the Court of Appeal. The declaration should include, inter alia, information about cash holdings, real estate, movable property of a value exceeding PLN 10,000, stocks, shares and financial instruments held by a judge. 98. Under section 87(6) of the Act on the Organisation of Ordinary Courts the information contained in the financial declaration is public with the exception of the address of the person concerned and the location of the real estate. The same provision stipulates that at the request of the judge, the person authorised to collect the declaration may decide to classify the information contained in the declaration, if the disclosure of this information could pose a threat to the person submitting the declaration or to his or her relatives. However, the Minister of Justice is entitled to declassify such declarations of judges. 99. The financial declarations are published in the Public Information Bulletin no later than 30 June each year (section 87(6a)). Court spokesperson 100. In accordance with Article 33 § 1 of the Regulation of the Minister of Justice on the Rules of operation of the ordinary courts, 23 December 2015, tasks related to cooperation between a court and the media are carried out by the president or vice-president of the court. In the Court of Appeal and the Regional Court the president of the relevant court may appoint a spokesperson to carry out those tasks (Article 33 § 2). The spokesperson reports directly to the president of that court (Article 33 § 3). 101. Under section 31(1)(1) of the Act on the Organisation of Ordinary Courts, the Board of the Regional Court expresses an opinion on the appointment of a spokesperson and on any dismissal from that position. International materialThe United Nations The United Nations The United Nations (a) The Basic Principles on the Independence of the Judiciary 102. The Basic Principles on the Independence of the Judiciary were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan in 1985. They were endorsed by UN General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. The relevant point reads as follows: “8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.” (b) The UN Special Rapporteur on the independence of judges and lawyers 103. On 24 June 2019 the UN Special Rapporteur on the independence of judges and lawyers, Mr Diego García-Sayán submitted his Report on freedom of expression, association and peaceful assembly of judges and prosecutors to the Human Rights Council. He made the following recommendations, in so far as relevant: “101. In exercising their freedom of expression, judges and prosecutors should bear in mind their responsibilities and duties as civil servants, and exercise restraint in expressing their views and opinions in any circumstance when, in the eyes of a reasonable observer, their statement could objectively compromise their office or their independence or impartiality. 102. As a general principle, judges and prosecutors should not be involved in public controversies. However, in limited circumstances they may express their views and opinions on issues that are politically sensitive, for example when they participate in public debates concerning legislation and policies that may affect the judiciary or the prosecution service. In situations where democracy and the rule of law are under threat, judges have a duty to speak out in defence of the constitutional order and the restoration of democracy.” The Council of Europe (a) The Committee of Ministers 104. The relevant extracts from the appendix to Recommendation CM/Rec (2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, adopted on 17 November 2010, provide: “ Chapter II – External independence ... 19. Judicial proceedings and matters concerning the administration of justice are of public interest. The right to information about judicial matters should, however, be exercised having regard to the limits imposed by judicial independence. The establishment of courts’ spokespersons or press and communication services under the responsibility of the courts or under councils for the judiciary or other independent authorities is encouraged. Judges should exercise restraint in their relations with the media. ... 21. Judges may engage in activities outside their official functions. To avoid actual or perceived conflicts of interest, their participation should be restricted to activities compatible with their impartiality and independence.” (b) The Parliamentary Assembly of the Council of Europe 105. The report of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe of 6 January 2020 entitled “The functioning of democratic institutions in Poland” (doc. 15025) stated, in so far as relevant: “ 4. Disciplinary proceedings against judges 95. As we outlined in the previous sections, a main objective of the reform started after the 2015 legislative elections has been to bring the judiciary firmly under the control of the ruling majority. In that context, the reports of disciplinary proceedings against, and harassment of, judges and prosecutors who are seen as acting against the interests of the ruling majority, or who have been openly critical of the reforms, is extremely concerning. This is all the more the case since recent disclosures that a campaign of harassment of judges was orchestrated with the involvement of leading personalities in the Ministry of Justice and High Council of Justice closely connected to the current ruling majority. ... ... 98. According to the Polish Constitution, judges cannot be members of political parties or engage in activities that would be incompatible with the principle of the independence of the courts and judiciary. While judges should refrain from political activities, the law does not clearly define what amounts to political activity and what is protected under the right to freedom of speech [footnote omitted]. While we concur with the prohibition of party-political activities for judges, this cannot have the effect of forbidding judges from being able to express an opinion on the legal system and changes to it that would affect them directly.” 106. The report of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe of 5 January 2021 entitled “Judges in Poland and in the Republic of Moldova must remain independent” (doc. 15204) stated, in so far as relevant: “ 4. Changes in the functioning of the judiciary in Poland ... 36. According to the authors of the motion for a resolution, ‘in Poland, courts remain the last resort for numerous prosecuted civil rights activists’ and ‘disobedient judges, such as Igor Tuleya, Wojciech Łączewski, Dominik Czeszkiewicz and Waldemar Żurek face disciplinary consequences from court newly appointed presidents’. ... 4.5. The ordinary courts ... 66. Several judges have even been threatened. Judge Waldemar Żurek, for example, has been receiving hate messages since 2016 and has been the subject of at least five sets of disciplinary or ‘explanatory’ proceedings. ... 4.7. Latest developments ... 79. Judge Waldemar Żurek, a member of the former NCJ, who was known to have criticised its reform, is the subject of disciplinary proceedings brought under the law of 20 December 2019, for having questioned the validity of the appointment of a judge to the S[upreme] C[ourt] (Mr K.Z.).” (c) The Council of Europe Commissioner for Human Rights 107. The Commissioner for Human Rights, Ms Dunja Mijatović carried out a visit to Poland from 11 to 15 March 2019. The report from her visit, published on 28 June 2019, reads in so far as relevant: “ 1.5 Mass dismissals and disciplinary proceedings affecting judges and prosecutors ... 49. The Commissioner recalls that judges and prosecutors have the right to express their views on matters of public interest, including on reforms of the judiciary and the prosecution service, in a proportionate way, and their freedom to do so must be safeguarded. ... 50. The Commissioner considers that, beyond the persons directly affected, disciplinary proceedings are likely to have a chilling effect on other judges and prosecutors who wish to participate in the public debate on issues related to the administration of justice and the judiciary, which according to the European Court of Human Rights works to the detriment of society as a whole [footnote omitted]. She observes that members of the judiciary and the prosecution service in Poland who publicly express their views on the reform relating to their professions incur a very real risk to their careers. The manner in which some disciplinary proceedings are being conducted, as relayed to the Commissioner by various interlocutors in Poland – including from the judicial and prosecutorial professions – and as described in media reports, has understandably been perceived as intimidating and/or as an attempt to silence outspoken or critical judges and prosecutors. The Commissioner urges the authorities to ensure that disciplinary proceedings are not instrumentalised and to secure the right to a fair trial of any person subjected to them.” (d) The European Commission for Democracy through Law (Venice Commission) 108. The Venice Commission, in its report on the Freedom of Expression of Judges, adopted at its 103rd Plenary Session (Venice, 19-20 June 2015, CDL-AD(2015)018) observed, in so far as relevant: “80. European legislative and constitutional provisions and relevant case-law show that the guarantees of the freedom of expression extend also to civil servants, including judges. But, the specificity of the duties and responsibilities which are incumbent to judges and the need to ensure impartiality and independence of the judiciary are considered as legitimate aims in order to impose specific restrictions on the freedom of expression, association and assembly of judges including their political activities.” (e) The Consultative Council of European Judges (“the CCJE”) 109. Opinion no. 3 of the CCJE on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality adopted on 19 November 2002 reads, in so far as relevant: “ b. Impartiality and extra-judicial conduct of judges 27. Judges should not be isolated from the society in which they live, since the judicial system can only function properly if judges are in touch with reality. Moreover, as citizens, judges enjoy the fundamental rights and freedoms protected, in particular, by the European Convention on Human Rights (freedom of opinion, religious freedom, etc). They should therefore remain generally free to engage in the extra-professional activities of their choice. 28. However, such activities may jeopardise their impartiality or sometimes even their independence. A reasonable balance therefore needs to be struck between the degree to which judges may be involved in society and the need for them to be and to be seen as independent and impartial in the discharge of their duties. In the last analysis, the question must always be asked whether, in the particular social context and in the eyes of a reasonable, informed observer, the judge has engaged in an activity which could objectively compromise his or her independence or impartiality. ... 33. The discussions within the CCJE have shown the need to strike a balance between the judges’ freedom of opinion and expression and the requirement of neutrality. It is therefore necessary for judges, even though their membership of a political party or their participation in public debate on the major problems of society cannot be proscribed, to refrain at least from any political activity liable to compromise their independence or jeopardise the appearance of impartiality. 34. However, judges should be allowed to participate in certain debates concerning national judicial policy. They should be able to be consulted and play an active part in the preparation of legislation concerning their statute and, more generally, the functioning of the judicial system. This subject also raises the question of whether judges should be allowed to join trade unions. Under their freedom of expression and opinion, judges may exercise the right to join trade unions (freedom of association), although restrictions may be placed on the right to strike.” 110. The Magna Carta of Judges (Fundamental Principles) was adopted in November 2010. The relevant part reads as follows: “ Judicial independence ... 3. Judicial independence shall be statutory, functional and financial. It shall be guaranteed with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level. The State and each judge are responsible for promoting and protecting judicial independence. ... Guarantees of independence ... 9. The judiciary shall be involved in all decisions which affect the practice of judicial functions (organisation of courts, procedures, other legislation).” 111. Opinion no. 18 of the CCJE on the position of the judiciary and its relation with the other powers of state in a modern democracy adopted on 16 October 2015 reads, in so far as relevant: “ VII. The need for restraint in the relations between the three powers ... A. “Judicial restraint” ... 41. In its dealings with the other two powers of state, the judiciary must seek to avoid being seen as guarding only its own interests and so overstating its particular concerns. Rather, the judiciary must take responsibility for the society it serves. The judiciary must show understanding and responsibility towards the needs of the public and the exigencies of the public purse. The judiciary can provide their insights on the possible effect of proposed legislation or executive decisions on the ability of the judiciary to fulfil its constitutional role. Judiciaries must also take care not to oppose all proposed changes in the judicial system by labelling it an attack on judicial independence. But, if judicial independence or the ability of the judicial power to exercise its constitutional role are threatened, or attacked, the judiciary must defend its position fearlessly. Examples of decisions which might come into those categories are massive reductions in legal aid or the closure of courts for economic or political reasons. 42. If it is necessary to criticise another power of the state or a particular member of it in the course of a judgment in a dispute or when it is necessary in the interests of the public, that must be done. For example, therefore, courts may criticise legislation or the failure of the legislative to introduce what the court would regard as adequate legislation. However, just as with the other powers of the state in relation to the judiciary, criticism by the judiciary must be undertaken in a climate of mutual respect. Judges, like all other citizens, are entitled to take part in public debate, provided that it is consistent with maintaining their independence or impartiality. The judiciary must never encourage disobedience and disrespect towards the executive and the legislature. In their professional and private relations with the representatives of the other powers, judges must avoid any conflict of interest and avoid any behaviour that might create a perception that judicial independence and impartiality and the dignity of the judiciary in general is impugned. As long as criticism is undertaken in a climate of mutual respect, it can be beneficial to society as a whole. However, it cannot be too often emphasised that it is not acceptable that reasonable critical comments from the judiciary towards the other powers of the state should be answered by removals from judicial office or other reprisals [footnote omitted]. The CCJE also emphasizes that inadmissible behaviour by representatives of the legislative and executive powers and by politicians may occur in the form of connivance and, in certain cases, support for aggression or even radical, violent and unlawful actions against the judiciary [footnote omitted]. Direct or indirect support for such actions against the judiciary is totally unacceptable. Not only are such actions a direct attack on judicial independence, they also stifle legitimate public debate by judges.” Other material 112. The Sofia Declaration adopted by the General Assembly of the ENCJ on 7 June 2013 reads in so far as relevant: “(vii) The prudent convention that judges should remain silent on matters of political controversy should not apply when the integrity and independence of the judiciary is threatened. There is now a collective duty on the European judiciary to state clearly and cogently its opposition to proposals from government which tend to undermine the independence of individual judges or Councils for the Judiciary.” THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 113. The applicant complained that he had been denied access to a court in order to contest the premature and allegedly arbitrary termination of his term of office as a judicial member of the NCJ. He had been elected as a member of this body for a four-year term, as provided for in Article 187 § 3 of the Constitution, and had the right to remain in office for the duration of that term, thus until 21 March 2018. He relied on Article 6 § 1 of the Convention, of which the relevant part reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” AdmissibilityApplicability of Article 6 Applicability of Article 6 Applicability of Article 6 (a) The Government’s submissions 114. The Government contested the applicability of Article 6 § 1 of the Convention to the present case. They claimed that under Polish law there was no right to exercise public authority, including the right of a judge to be elected to the NCJ or to remain in that office. Moreover, in the present case there was no genuine and serious “dispute” concerning the existence of the alleged civil right of the applicant to remain a member of the NCJ. 115. The Government referred to the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17), in which certain provisions of the 2011 Act on the NCJ had been found unconstitutional. In order to implement the above ‑ mentioned Constitutional Court judgment, the authorities had prepared a bill amending the Act on the NCJ. The bill, subsequently enacted into law as the 2017 Amending Act, departed from the principle of the individual character of the term of office for judicial members of the NCJ and changed the manner of their election. The Government maintained that the decision to terminate the applicant’s term of office as a judicial member of the NCJ had been legitimate. That decision had concerned solely his position as a member of the NCJ and did not touch upon his status as a judge. Its rationale was to implement the Constitutional Court’s judgment in so far as the nature of the term of office of the NCJ’s judicial members was concerned. It thus constituted a merely technical measure aimed at the establishment of a new term of office consonant with the relevant constitutional provisions. 116. They submitted that the applicant’s membership of the NCJ did not constitute “employment” or any other comparable legal relationship. The fact of being a member of the NCJ could not be regarded as a right either under domestic law or under the Convention, but pertained to the exercise of public authority. 117. As regards the first condition of the Eskelinen test, the Government maintained that under Polish law the applicant had been excluded from the right of access to a court in so far as his seat on the NCJ was concerned. This exclusion had been in place already on the date of his election to the NCJ and thus the 2017 Amending Act had not affected this. They noted that the Act on the NCJ had never provided for any form of appeal or remedy in connection with the expiry, termination or renunciation of office for the members of this body. Matters pertaining to participation in the NCJ did not constitute a “case” ( sprawa ) within the meaning of Article 45 § 1 of the Constitution and as such were excluded from the right to a court ratione materiae. The Government concluded that national law “excluded access to a court” for an individual claim based on the alleged unlawfulness of the termination of the term of office. The first condition of the Eskelinen test had therefore been met. 118. As regards the second condition of the Eskelinen test, the Government submitted that the subject-matter of the applicant’s complaint related exclusively to the exercise of State power. In their view, the amendments in the 2017 Amending Act had been proportionate since the aim had been to adjust the election rules to the relevant provisions of the Constitution, as interpreted by the Constitutional Court in its judgment of 20 June 2017 (no. K 5/17). The Government maintained that in the Constitutional Court’s case ‑ law the protection of the term of office of the NCJ’s judicial members was not regarded as absolute. In their view, the cohesion of the changes which made it possible for the NCJ to operate in compliance with the Constitution justified the termination of the terms of office of the NCJ’s judicial members who had been elected on the basis of the previous provisions. Furthermore, the “democratisation” of the NCJ election procedure constituted an important public interest which justified in turn the early termination of the term of office of the NCJ’s judicial members. In this context, the Government submitted that under the 2017 Amending Act judicial members of the NCJ were to be elected by the Sejm from among the judges who obtained adequate support from other judges or from citizens. The Government concluded that the applicant’s exclusion from access to a court was justified on objective grounds in the State’s interest. The second condition of the Eskelinen test had therefore been met as well. 119. In the present case, since both conditions of the Eskelinen test had been fulfilled, the applicant’s complaint under Article 6 § 1 should be considered incompatible ratione materiae. (b) The applicant’s submissions 120. The applicant maintained that Article 6 § 1 under its civil head was applicable to his case. He asserted that the Polish Constitution guaranteed to a judge elected to the NCJ the right to serve a full four-year term of office. This conclusion stemmed from Article 60 read in conjunction with Article 187 § 3 of the Constitution. Therefore, the early termination of his term of office in the NCJ had to be seen as an interference with his individual right of access to public service, not as a deprivation of the exercise of public power. The latter was exercised by the NCJ as a collective body, not by its individual members. 121. The applicant submitted that the stability of tenure of the NCJ’s members was fundamental to ensuring the proper functioning of that body. The Constitutional Court had underlined in its judgment of 18 July 2007 (no. K 25/07) that only extraordinary circumstances could warrant a breach of the tenure of the NCJ’s members. The applicant submitted that the Government’s argument that there had been no alternative to the shortening of his term of office in connection with the introduction of the new system of electing the NCJ’s judicial members could not be accepted as proportionate or legitimate. 122. As regards the first condition of the Eskelinen test, the applicant argued that the domestic law had never explicitly excluded access to a court for judicial members of the NCJ whose term of office had been prematurely terminated. The premature termination in his case had been unprecedented. The Act on the NCJ in force at the time of his election to the Council did not provide for such termination, except in the situations provided for in section 14 of the Act. The termination at issue had resulted from the ad hoc application of statute law and lacked the characteristics of abstract legal norms. It could not be concluded that the national law “expressly excluded access to a court” for a claim based on the alleged unlawfulness of the measure at issue. 123. As regards the second condition of the Eskelinen test, even assuming that domestic law excluded access to a court in his case, the applicant argued that the exclusion was not based on objective grounds in the State’s interest. Firstly, the exclusion had a significant impact on his status as judge since he had been elected to the NCJ in his capacity as a judge of an ordinary court, not as an ordinary citizen. His election to the NCJ had been aimed at ensuring the proper operation of the NCJ, a body responsible for safeguarding judicial independence. 124. Secondly, the applicant maintained that the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17) had to be seen as a false pretext justifying the introduction of changes to the NCJ’s composition at the time when the legislative procedure, initiated by the Ministry of Justice, had been pending in Parliament. Moreover, the impugned judgment was invalid and contrary to the Constitution owing to the participation of Judges M.M. and L.M. in the adjudicating panel. 125. Thirdly, the exclusion of the right of access to a court was incompatible with the rule of law. The shortening of the applicant’s term of office could not be regarded as a merely technical measure. Rather, it constituted a serious violation of Article 187 § 3 of the Constitution and interference with the right of access to public service under Article 60 of the Constitution. (c) Submissions of third-party interveners 126. The European Network of Councils for the Judiciary, Amnesty International jointly with the International Commission of Jurists, the Helsinki Foundation for Human Rights, the Polish Judges’ Association Iustitia, the Judges for Judges Foundation jointly with Professor L. Pech and the Commissioner for Human Rights of the Republic of Poland submitted their written comments on the case, similar to those made earlier in the case of Grzęda v. Poland. Their submissions were summarised in the Grzęda judgment (cited above, §§ 205-239). The submissions received pertain both to the admissibility and merits of the complaint under Article 6 § 1. 127. The Judges’ Association Themis, which did not intervene in Grzęda, submitted comments in the present case. With regard to the stability of tenure of judicial members of the NCJ, the intervener supported the view of the Commissioner that the judicial members were entitled to protection as regards their irremovability, analogous to that afforded to judges performing judicial functions. It considered that in this context the Court should have regard to the relevant jurisprudence of the CJEU. The intervener noted that the change of procedure for electing judicial members of the NCJ rendered that procedure politicised. It also resulted in a situation where the NCJ ceased to fulfil its constitutional role as guardian of judicial independence. (d) The Court’s assessment (i) General principles 128. The general principles regarding the applicability of Article 6 § 1 in its “civil” limb were recently summarised in Grzęda v. Poland ([GC], no. 43572/18, §§ 257-264, 15 March 2022). (ii) Application of the general principles to the present case 129. The Court notes that the applicant is a judge of the Cracow Regional Court. On 2 March 2014 he was re-elected to the NCJ for a period of four years by the Representatives of the General Assemblies of Regional Court judges, in accordance with the relevant provisions of the Constitution and the applicable legislation. His second term of office on the NCJ began on 21 March 2014 and was due to come to an end on 21 March 2018. 130. In Grzęda v. Poland the Grand Chamber of the Court examined the question of applicability of Article 6 § 1 to a dispute arising out of the premature termination of that applicant’s term of office as a judicial member of the NCJ, while he still remained a serving judge (ibid., § 265). The same question arises in the present case. 131. As regards the existence of a right, the Court found in Grzęda that, having regard to the terms of Article 187 § 3 of the Constitution, there was in domestic law an arguable right for a judge elected to the NCJ to serve a full term of office, save for the exhaustively enumerated statutory exceptions in section 14(1) of the 2011 Act on the NCJ (ibid., § 282). The Court further held in Grzęda that there was a genuine and serious dispute over the “right” to serve a full term of four years as a judicial member of the NCJ (ibid., § 286). 132. Next the Court examined in that case whether the “right” claimed by the applicant was a “civil” one within the autonomous meaning of Article 6 § 1 in the light of the criteria developed in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007 ‑ II). As regards the first condition of the Eskelinen test, namely whether the domestic law expressly excluded access to a court, the Court held that the first condition could be regarded as fulfilled where, even without an express provision to such effect, it had been clearly shown that domestic law excluded access to a court for the type of dispute concerned ( Grzęda, cited above, § 292). However, it left open the question of compliance with the first condition of the Eskelinen test, noting the opposing views of the parties in this respect and having regard to its conclusion as to the second condition of the test (ibid., § 294). 133. As regards the second condition of the Eskelinen test, namely whether the applicant’s exclusion from access to a court was justified on objective grounds in the State’s interest, the Court held that it had not been met (ibid., § 325). It found in this context that the applicant’s position as an elected judicial member of the NCJ, the body with constitutional responsibility for safeguarding judicial independence, had been prematurely terminated by operation of the law in the absence of any judicial oversight of the legality of this measure. The exclusion of the applicant from a fundamental safeguard for the protection of an arguable civil right closely connected with the protection of judicial independence could not be regarded as being in the interest of a State governed by the rule of law (ibid., § 326). Accordingly, the Court found in Grzęda that Article 6 § 1 in its civil limb was applicable in the applicant’s case. 134. In the present case, for the same reasons as those set out in Grzęda (ibid., 266-329), the Court finds that Article 6 § 1 is applicable. It thus rejects the Government’s objection in this regard. Victim status 135. The Government argued that membership of the NCJ pertained to the sphere of exercise of public authority and that as such was not an individual right protected by the Convention. The mere fact that an individual was removed from an office entailing the exercise of public power should not be regarded as an interference with human rights. Therefore, the applicant could not claim to be a victim of a violation of human rights protected by the Convention and his application was inadmissible owing to a lack of victim status. 136. The applicant contested the Government’s assertion. 137. The Court notes that the Government’s objection on the grounds of a lack of victim status is based on the same arguments as those raised in respect of the applicability of Article 6 to the present case, which it has dismissed above (see paragraphs 114-117 above). As the Court has already decided that the dispute arising out of the premature termination of the applicant’s term of office as a judicial member of the NCJ pertained to a “civil right” within the meaning of Article 6 § 1 of the Convention, it finds that the Government’s objection alleging a lack of victim status must be dismissed. Objection based on a lack of significant disadvantage (a) The parties’ submissions 138. The Government further submitted that the application was inadmissible on account of a lack of significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. In their view, the applicant had not sustained any disadvantage of a pecuniary or non-pecuniary nature in connection with the termination of his term of office as a member of the NCJ. In support of this contention, they referred to their earlier arguments on the applicability of Article 6 § 1. 139. The applicant argued that his case could not be rejected under Article 35 § 3 (b) as he had suffered a significant disadvantage in the form of non-pecuniary damage related to the distress caused by the violation of his Convention rights. Furthermore, respect for human rights as defined in the Convention required the examination of his case on the merits since it pertained to the relationship between the principles of the separation of powers and the effective protection of human rights. Lastly, his case had not been duly examined by a domestic court. In fact, he had been deprived of the possibility of challenging the premature termination of his term of office before a court. (b) The Court’s assessment 140. The Court considers that the objection based on Article 35 § 3 (b) cannot be accepted. The present application concerns similar issues to those which arose in Grzęda, where it was considered that they raised serious questions affecting the interpretation of the Convention or the Protocols thereto and the case had therefore been relinquished to the Grand Chamber under Article 30 of the Convention. The Court is thus of the view that the conditions set forth in Article 35 § 3 (b) are not met, since respect for human rights, as defined in the Convention and the Protocols thereto, requires an examination of the application on the merits (see Grzęda, cited above, § 332). 141. The Government’s objection under Article 35 § 3 (b) of the Convention must accordingly be dismissed. Overall conclusion on admissibility 142. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe applicant’s submissions The applicant’s submissions The applicant’s submissions 143. The applicant argued that he had not had access to a court for the determination of his civil rights in accordance with Article 6 § 1 of the Convention. The Government’s submissions 144. The Government maintained that there had been no violation of Article 6 § 1 of the Convention. They reiterated their arguments as to the inapplicability of this provision to the present case. The Court’s assessment (a) General principles 145. The applicable general principles concerning the right of access to a court were recently summarised in Grzęda (cited above, §§ 342-343). (b) Application of the general principles to the present case 146. The Court would point out that it has left open the question whether the first condition of the Eskelinen test has been fulfilled, taking account of the opposing views of the parties on that issue and since, in any event, it has concluded that the second condition has not been met (see paragraph 132 above). However, the Court reiterates that the Government have consistently argued that for the purposes of Article 6 of the Convention the applicant’s access to a court was excluded at all times under national law, both before his term of office as a judicial member of the NCJ was terminated by the 2017 Amending Act, as well as after that termination (see paragraph 117 above). Therefore, the Court is now called upon to assess whether the applicant’s lack of access to the domestic courts, in order to have examined the genuine and serious dispute over his arguable right to serve a full term of four years as a judicial member of the NCJ (see paragraph 131 above), was justified in conformity with the general principles emanating from the Court’s case-law. 147. Referring to its analysis with regard to the issue of the applicability of Article 6 § 1, in particular the importance of the NCJ’s mandate to safeguard judicial independence and the link between the integrity of the judicial appointment process and the requirement of judicial independence (see Grzęda, cited above, §§ 300-303), the Court considers that similar procedural safeguards to those that should be available in cases of dismissal or removal of judges should likewise be available where, as in the present case, a judicial member of the NCJ has been removed from his or her position (ibid., § 345). 148. The Court further emphasises the need to protect a judicial council’s autonomy, notably in matters concerning judicial appointments, from encroachment by the legislative and executive powers, and its role as a bulwark against political influence over the judiciary. In assessing any justification for excluding access to a court with regard to membership of judicial governance bodies, the Court considers it necessary to take into account the strong public interest in upholding the independence of the judiciary and the rule of law. It also has regard to the overall context of the various reforms undertaken by the Polish Government which have resulted in the weakening of judicial independence and adherence to rule-of-law standards (ibid., § 346). 149. In the instant case the Government have not provided any reasons justifying the absence of judicial review, but have simply reiterated their arguments as to the inapplicability of Article 6 to the case. 150. Having regard to the foregoing, the Court finds that on account of the lack of judicial review in this case the respondent State impaired the very essence of the applicant’s right of access to a court (ibid., § 349). 151. Accordingly, the Court finds that there has been a violation of the applicant’s right of access to a court, as guaranteed by Article 6 § 1 of the Convention. Alleged violation of Article 13 of the Convention 152. The applicant complained under Article 13 of the Convention that he had been deprived of an effective domestic remedy in respect of the premature termination of his term of office as judicial member of the NCJ. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 153. The Court notes that the complaint under Article 13 is essentially the same as that under Article 6 § 1. It reiterates that the safeguards of Article 6 § 1, implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, for example, Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000 ‑ XI, and Baka, cited above, § 181). 154. Consequently, the Court finds that it is not necessary to examine separately the admissibility and merits of the complaint under Article 13 of the Convention (see Grzęda, cited above, § 353). ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 155. The applicant complained about the termination of his position as the NCJ’s spokesperson, resulting from the termination of his term of office as a judicial member of the NCJ, and the earlier dismissal from his position as the Cracow Regional Court’s spokesperson. He further complained about the actions taken, inter alia, by the CBA, the tax authorities and the prosecution service with regard to him and his family members and about the declassification of his financial declaration by the Minister of Justice. The applicant alleged that those measures had been taken in response to his critical public statements on legislative changes affecting the judiciary and entailed a violation of his right to freedom of expression. He relied on Article 10 of the Convention, of which the relevant part provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility 156. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe applicant’s submissions The applicant’s submissions The applicant’s submissions 157. The applicant averred that both the decision to remove him from his position as Cracow Regional Court’s spokesperson and the measures taken, inter alia, by the CBA, the tax authorities and the prosecution service with regard to him and his family members, in themselves and by the manner in which they had been carried out, had constituted an interference with his freedom of expression. In this connection, the applicant also referred to the premature termination of his term of office as a judicial member of the NCJ which had brought to an end his duties as the NCJ’s spokesperson. He had taken an active part in the public debate concerning the reorganisation of the judiciary primarily in his capacity as the NCJ’s spokesperson. 158. The applicant submitted that in order to answer the question whether there had been an interference with his freedom of expression, the scope of the measure had to be determined by putting it in the context of the facts of the case and of the relevant legislation. He disagreed that only formal disciplinary proceedings or typical sanctions could constitute an interference within the meaning of Article 10. In any event, several sets of disciplinary proceedings had been instituted against him, including for his statements in the public debate, but since they were pending they were not subject to the Court’s assessment in the present case (see paragraphs 86-90 above). 159. The applicant maintained that he was a symbolic figure of the Polish judicial community and one of the judges most engaged in the public debate concerning the independence of the judiciary in recent years. At the same time, he was one of the most “targeted” judges and had been subjected to, more or less formal, repressive measures by the authorities over the past few years. His case had been mentioned, inter alia, in a report by the Polish Judges’ Association Iustitia and by the Lex Super Omnia Association of Prosecutors, “Justice Under Pressure”, published in 2020. 160. For many years and in a consistent manner the applicant had defended the rule of law and the independence of the courts and openly criticised the unconstitutional changes in the judiciary brought about by the current majority. He argued that all the measures taken by the authorities in response to the multiple statements he had made in the public debate had amounted to an interference with his freedom of expression. Those measures clearly constituted a “restriction” within the meaning of Wille v. Liechtenstein ([GC], no. 28396/95, ECHR 1999 ‑ VII). 161. As regards the CBA officers’ entry into the NCJ’s premises on 19 April 2017, the applicant maintained that they had interrupted his confidential meeting with the President, Vice-President and the other spokesperson of the NCJ. The officers had introduced themselves and stated that they were going to serve the audit authorisation on the applicant. The applicant did not acknowledge receipt of the authorisation and the officers left the NCJ’s building. The authorisation was only a two-page formal document and contained no substantive content. The applicant observed that it could have been sent to him by post or served during his appearance before the CBA. He submitted that such action had been aimed at drawing the attention of public opinion and other judges to his supposed legal problems. 162. The applicant pointed out that the Government, while admitting that the CBA had selected the financial declarations of six judges for auditing, had not provided any information on the frequency or time-scale of those audits. He argued that the manner of auditing his financial declarations had gone far beyond the CBA’s routine activities and had shown that the real intention of the authorities was to draw public attention to possible inaccuracies in his financial declarations. 163. Both the timing and accumulation of the measures taken in relation to the applicant and his family showed that even if there were formal grounds for taking those measures, they had all been used instrumentally or even ultra vires in order to intimidate him. No measures targeting the applicant had been taken before the current majority came to power in the 2015 general election despite the fact that the applicant had been acting as the NCJ’s spokesperson and the Cracow Regional Court’s spokesperson for several years already. Although the CBA’s audit of his financial declarations covered the years 2012-2017, the audit had been initiated in late 2016, at a time when the applicant was frequently criticising the reforms of the judiciary implemented by the governing majority. In addition, the manner in which the public officials had informed the media about the measures taken with regard to the applicant and his family clearly demonstrated that they had intended to raise suspicions as to his credibility in public opinion and therefore to have a “chilling effect” on him. 164. The applicant maintained that when putting all the impugned measures in the context of the facts of the case, including the broader context of the rule of law crisis in Poland, it was obvious that those measures had been taken in direct response to the views and criticisms that he had expressed in his professional capacity. 165. The applicant submitted that the interference at issue had not been “prescribed by law”. He referred to the controversy concerning his removal from the position of spokesperson of the Cracow Regional Court. As regards the measures taken by the CBA and other authorities, he underlined that although those measures had at first glance been taken on formal grounds, they were intended to intimidate him and discourage him from criticising the government’s reforms of the judiciary. The use of those measures should be regarded as an abuse of power or as ultra vires. 166. In the applicant’s view, the interference at issue did not pursue a legitimate aim. In fact, it was impossible to see any such aim in the punitive restrictions imposed on him for fulfilling his legal duty to provide opinions on the reforms of the judiciary in Poland in his capacity as the NCJ’s spokesperson. The applicant had not formulated his statements in a courtroom while adjudicating upon cases, but in the course of the intensive public debate in the media in his capacity as spokesperson. He had warned public opinion about the threats to the independence of the judiciary resulting from the reforms. 167. Lastly, the interference at issue was not necessary in a democratic society in the light of the Court’s case-law. The Government and its agencies had not recognised the need for special protection of the applicant’s freedom of expression when he had expressed views in his official capacity on matters of public interest concerning the independence of the judiciary. The measures taken by the authorities had been intended to cause a “chilling effect” not only on the applicant, but also on other judges, so they would refrain from participating in public debate on those issues. In this context, it was noteworthy that the audits carried out by the CBA had been extended to six judges, including the applicant, out of a total of some ten thousand judges in Poland. The Government had not provided any details about the other judges subjected to audits. The purpose of actions targeting the applicant was undoubtedly to break his steadfastness with a view to facilitating the hostile takeover of the judiciary. Referring to the number of cases decided or pending before the Court in relation to the reforms of the Polish judiciary, the applicant argued that the impugned measures taken by the authorities could not be regarded as necessary in a democratic society. The Government’s submissions 168. The Government disagreed that the measures taken with regard to the applicant and his family had been the consequence of the criticism he had expressed in his professional capacity. They maintained that there had been no interference with the applicant’s freedom of expression within the meaning of Article 10. 169. As regards the applicant’s dismissal from his position as spokesperson of the Cracow Regional Court, the Government argued that the impugned measure could not have had any impact on his freedom of expression. The tasks related to the cooperation of the court with the media were carried out by the president or vice-president of the court. However, in the court of appeal or the regional court the president of that court could appoint a spokesperson to carry out those tasks. The spokesperson reported directly to the president of the court. For these reasons, dismissal from the position of spokesperson of a court could not be equated with a restriction on freedom of expression because an individual’s opinion could not be fully expressed in performing the function of spokesperson. Therefore, the Government maintained that the applicant’s dismissal from the position of spokesperson of the court would, at the most, limit his ability to represent that institution publicly, which was not a right guaranteed in Article 10. 170. They stressed that the applicant was able to continue to express his views in the public debate on judicial reform in Poland at the meetings of judicial associations of which he was an active member and by participating in the Judges’ Cooperation Forum. The applicant had participated in numerous debates in various fora concerning the judiciary. The Government maintained that the applicant had been actively exercising his rights guaranteed by Article 10, as exemplified by his interviews, statements and other activities in the public debate after he had been removed from the position of spokesperson of the Cracow Regional Court. Moreover, the assessment of sanctions allegedly affecting the applicant for his criticism of the reforms of the judiciary was problematic. The Government stressed in this respect that the applicant had not referred to any disciplinary proceedings against him or any penalty imposed on him. 171. The Government submitted that contrary to the case of Kudeshkina v. Russia (no. 29492/05, 26 February 2009) the applicant had not been dismissed from his judicial office as a result of disciplinary proceedings, but only removed from the position of spokesperson of the court. That latter decision was legitimate and did not touch upon his judicial functions. They also noted that the present case was not comparable to the case of Baka v. Hungary (cited above). 172. As regards the measures taken by the CBA, the Government admitted that in 2016 the CBA’s unit responsible for the auditing of financial declarations had carried out a systematic examination of such declarations by judges. The unit had selected a group of six judges, which included the applicant, whose financial declarations had been subjected to advanced scrutiny due to existing irregularities. The selection of six judges had been based on a two-stage analysis of the declarations and prompted by uncertainties relating to their correctness. The CBA had initiated an audit of the applicant’s assets and his financial declarations. The Government stressed that the audit carried out in the applicant’s case had been one of a routine nature and had not differed from those carried out in relation to members of parliament, other judges and prosecutors. 173. The Government maintained that the applicant had had the right to participate in the audit procedure, which had been transparent and based on the provisions of the CBA Act. Section 33 of this Act concerning the relevant procedure of the CBA required that, in order to conduct the audit, the officer should present to the person concerned an official ID card and an authorisation issued by the Head of the CBA. For this reason, it had been impossible to initiate an audit without a meeting of the CBA officer and the applicant. 174. The Government argued that the CBA officers had made numerous attempts to arrange a meeting with the applicant, both at his place of residence and at the court where he served as a judge. However, owing to the applicant’s persistent avoidance of the meeting, thus obstructing the initiation of the audit procedure, the CBA had taken the decision to serve the authorisation at the seat of the NCJ. On 19 April 2017 the CBA officers had entered the NCJ’s premises. In the Government’s submission, the applicant had been asked to leave a room so the officers could serve on him a decision authorising the auditing of his financial declarations, but he had refused, thus preventing the officers from carrying out their statutory tasks. Therefore, the officers had walked into the room and interrupted the applicant’s meeting with other members of the NCJ in order to serve the authorisation on him. 175. The Government maintained that the basic element of the audit procedure was the verification of the accuracy of the individual’s financial declaration against the relevant records of the State, bank account history and participation in investment funds. The competent authorities and the national financial institutions had been contacted during the audit. The only auditing activities that had been applied to the applicant’s family members consisted in obtaining the court’s permission for access to data covered by banking secrecy relating to the applicant’s and his family’s bank accounts. These actions were necessary since the applicant had remained under the regime of joint matrimonial property with his wife during the period covered by the audit. The applicant’s wife had been informed of these actions, which had been carried out in accordance with section 23(9) of the CBA Act. 176. The Government submitted that the results of the audit, based on official documents received from government bodies and financial institutions, had constituted the basis for a report concerning the established irregularities which had been submitted to the Cracow Regional Prosecutor’s Office for the purpose of criminal law assessment. In the Government’s view, the actions conducted by the CBA officers against the applicant had exclusively been aimed at assessing the accuracy and veracity of his financial declarations. All activities undertaken by the officers had been based on the provisions of the CBA Act regulating the audit procedure. The audit procedures concerning the financial declarations of judges and prosecutors complied with the guidelines of the Group of States against Corruption of the Council of Europe (GRECO). 177. As regards the declassification of the applicant’s financial declaration, the Government submitted that judges were required to submit such declarations pursuant to section 87(1) of the Act on the Organisation of Ordinary Courts. The declaration concerned personal property and property covered by a joint matrimonial regime. It had to contain, inter alia, information on cash holdings, real estate, movable property of a value exceeding PLN 10,000, stocks, shares and financial instruments held by a judge. The information contained in the financial declaration was public with the exception of the address of the person concerned and the location of the real estate. The financial declarations were published in the Public Information Bulletin no later than 30 June each year (section 87(6a)). The Government stressed that the rules on disclosing the financial status of judges were analogous to those applicable to prosecutors and persons holding elected office. 178. The Government maintained that the main objective of the amendment to section 87 of the Act on the Organisation of Ordinary Courts, which made the judges’ financial declarations public, had been to implement the recommendation included in the report on the fourth evaluation round of GRECO. The legislature’s intention was to ensure the transparency of those financial declarations in order to strengthen public trust in the courts and judges. The audit procedures carried out by the authorities with regard to financial declarations of judges were conducted in accordance with the GRECO guidelines concerning the fight against corruption. For those reasons, it could not be assumed that the declassification of the applicant’s financial declaration constituted a “sanction” specifically directed at the applicant (as the transparency of declarations concerned all judges). 179. In the light of the above, the Government averred that the measures taken by the CBA and the tax authorities with regard to the applicant and his family members, together with the declassification of his financial declaration, had been in accordance with the domestic law aimed at implementation of the Council of Europe standards. 180. In sum, the Government submitted that in the applicant’s case there had been no interference with his freedom of expression within the meaning of Article 10 § 1 of the Convention. In any event, the Government argued that there had been no violation of Article 10 in the present case. Submissions of third-party interveners (a) The Commissioner for Human Rights of the Republic of Poland 181. The Commissioner submitted that freedom of expression, constituting an essential foundation of a democratic society, applied to members of the judiciary. However, the Polish authorities, in an attempt to silence criticism, frequently claimed that judges expressing critical opinions on changes in the judiciary were politically involved. In the Commissioner’s view, this argument had to be rejected. 182. To be sure, judges should not participate in political life. The Polish Constitution prohibited them from joining a political party or carrying out public activities that would compromise the independence of the judiciary (Article 178 § 3). However, Polish judges who criticised the changes in the judiciary were pointing above all to the threats to judicial independence as well as to the dismantling of the separation of powers and the rule of law which those changes entailed. Judges were not only entitled, but in fact obliged to defend their independence. That obligation especially concerned the judge who was acting as the court’s spokesperson and the spokesperson of the NCJ – the constitutional guardian of independence. 183. The intervener noted that the issues of judicial independence and the functioning of the judiciary were naturally matters of constitutional law and inevitably had political implications. However, this element alone should not prevent judges from making statements on such matters. Since comments made by judges on changes in the judiciary impacting on the right to a fair trial were not only acceptable, but also desirable, the authorities should neither prevent nor discourage judges from expressing their opinions. 184. Having regard to the Court’s case-law, the intervener submitted that the concurrence of actions taken by several State bodies against a judge, at a time when he was critically commenting on issues relating to judicial independence and changes in the functioning of the judiciary, substantiated the claim that these actions were coordinated and aimed at limiting the judge’s activity. Taking account of the entirety of the situation, rather than separate incidents, there could be prima facie evidence of a causal link between the judge’s exercise of the freedom of expression and the measures undertaken by various State bodies. Once there was such evidence in favour of the applicant’s version of the events and the existence of a causal link, the burden of proof should shift to the Government. (b) The Judges’ Association Themis 185. The intervener submitted that in the years 2016-2018, when the Polish Government was engaging in numerous measures aimed at the subordination of the Constitutional Court, the NCJ and the Supreme Court, the applicant had become the voice of the independent Polish judiciary. His numerous appearances in the media in defence of the rule of law had resulted in a wave of persecution against him. Currently, the applicant was one of the most persecuted Polish judges; there were five sets of disciplinary proceedings pending against him and two sets of preliminary disciplinary proceedings. He had also experienced a prolonged audit by the CBA, administrative means of harassment applied by the newly appointed President of the Cracow Regional Court, Ms D.P.-W. and attacks from State-owned media outlets. 186. The intervener maintained that the actions taken against the applicant were part of the general approach of the ruling majority aimed at depriving the representatives of the judicial community of the right to speak in public. This was evidenced by the adoption of changes to the Act on the Organisation of the Ordinary Courts on the basis of the so-called “Muzzle Act”, which prohibited bodies of judicial self-government from adopting resolutions criticising the reform of the judiciary. The same Act had introduced the prohibition of critical statements and actions in this regard by individual judges under the threat of disciplinary liability. One of the sets of disciplinary proceedings against the applicant was the very first to be initiated on the basis of the “Muzzle Act”. (c) The Helsinki Foundation for Human Rights 187. The Helsinki Foundation for Human Rights submitted that the Convention standards regarding the protection of the freedom of expression of judges were similar to those provided for in various international documents and recommendations. It referred to the UN Basic Principles on the Independence of the Judiciary, the Universal Charter of the Judge, the Bangalore Principles of Judicial Conduct as well as the report of the UN Special Rapporteur on the Independence of Judges and Lawyers and the Venice Commission’s report on the freedom of expression of judges. In its view, there was a consensus that judges, as all other individuals, had the right to freedom of expression. Due to the specificity of their profession and the necessity of maintaining public trust in the judiciary, the freedom of expression of judges could be subject to various restrictions. However, such restrictions should not prevent judges from taking part in debates of public importance, in particular on topics related to the independence of the judiciary. 188. The intervener underlined, echoing the report of the UN Special Rapporteur, that in times of a rule-of-law crisis judges had to be able to speak freely about threats to the independence of the judiciary. In this context, first, the judges’ criticism of controversial reforms of the judicial system could discourage politicians from pursuing them or at least oblige them to explain their motivation to the public and, second, the opinion of judges could be of great informative value to citizens. Moreover, every instance of the alleged violation of the rules concerning the limits of the judges’ freedom of expression should be reviewed by an independent disciplinary body in fair proceedings. It would be completely unacceptable to harass judges through imposition of sanctions, dismissals, transfers or initiation of various criminal or disciplinary proceedings against them under the false pretext of de facto punishment for the exercise of their freedom of expression. 189. The Helsinki Foundation maintained that persecution of judges who exercised their freedom of expression to protest against reforms inconsistent with the rule-of-law standards ultimately threatened not only the rights of judges but also the right to a fair hearing of every individual. Such persecution could produce a “chilling effect” which could discourage judges not only from expressing their views on matters of public importance, but also from issuing rulings which would be unfavourable to the politicians. 190. The intervener stated that since the parliamentary elections in the autumn of 2015, the Government had taken a series of measures aimed at undermining judicial independence. Those legislative and other measures raised serious controversies and led to numerous proceedings before the CJEU and the Court. In addition to the legislative changes, the independence of the judiciary had been undermined by different actions of the Minister of Justice and disciplinary officers appointed by him following the changes to the rules of disciplinary liability of judges. The intervener referred to important changes in this context introduced by the so-called “Muzzle Act” of December 2019. 191. There were different forms of harassment of judges via disciplinary proceedings which could be divided into two categories. First, some judges were questioned by the disciplinary officers or even charged before the Disciplinary Chamber of the Supreme Court for alleged transgression of freedom of expression, usually in connection with their critical statements about the actions of the government. Many examples of such proceedings were described in the report “Justice under pressure” published in 2019 by the Iustitia Polish Judges’ Association. The report had focused on instances of misuse of disciplinary proceedings to harass judges who opposed unconstitutional reforms implemented by the government. The second category of cases concerned judges who were subjected to disciplinary proceedings in connection with their rulings. This type of disciplinary proceedings had been initiated in particular against judges who had questioned the status of judges appointed by the President of the Republic upon the recommendation of the new NCJ. In addition, in some cases the authorities had applied to the Disciplinary Chamber to waive the immunity of judges in contexts which could suggest political motivation. 192. While analysing various forms of harassment of judges in Poland, the role of the public media, which carried out regular “smear campaigns” against judges, could not be ignored. According to the private media some officials of the Ministry of Justice and some newly-elected judicial members of the NCJ had allegedly coordinated online smear campaign against judges. The intervener submitted that all these actions could be perceived as a form of pressure on the judges. Although so far disciplinary sanctions had been imposed on judges in a relatively small number of cases, the potential “chilling effect” produced by the mere fact of initiating disciplinary, or even more so, criminal proceedings against a judge, could not be ignored. (d) Amnesty International and the International Commission of Jurists 193. The interveners submitted that judges had the right and duty to speak out in defence of the rule of law. Any assessment of the necessity and proportionality of restrictions on the right to freedom of expression of judges had to be seen in light of the role of the judiciary under the principle of separation of powers and the judiciary’s “mission to guarantee the very existence of the rule of law”. They noted that international standards recognised that each judge was “responsible for promoting and protecting judicial independence”. As the maintenance of judicial independence could on occasion require a judge to exercise his or her right to freedom of expression, the possibility of effectively exercising this right in the light of a correlated duty had to be guaranteed. If judges feared that they would face sanctions for speaking in defence of judicial independence, the threat of sanction would inevitably have a “chilling effect” that would stand in direct contradiction to the duties and responsibilities of judges to uphold judicial independence. In any assessment of whether an interference with a judge’s freedom of expression was necessary in a democratic society and proportionate to a legitimate aim, the responsibility of the judge to uphold judicial independence should be a significant consideration. 194. The possible scope for limitations on the right to freedom of expression had to, when applied to judges, be interpreted in the light of the specific role of the judiciary as an independent branch of State power, in accordance with the principles of the separation of powers and the rule of law. Any restriction on the right to freedom of expression must not impair the right and duty of the judges to protect and enforce, without fear or favour, their independence. This right became an imperative when judges spoke from a position where they had a duty to voice certain concerns, such as where they were designated as a representative or spokesperson for a judicial institution. Provided that the dignity of judicial office was upheld and the appearance of independence and impartiality of the judiciary was not undermined, the executive had to respect and protect the right and duty of judges to express their opinions, particularly on matters concerning the administration of justice and the protection of judicial independence and the rule of law. (e) Judges for Judges Foundation and Professor L. Pech 195. The interveners submitted that under EU law freedom of expression was a fundamental but not absolute right; limitations on its exercise had to be provided for by law, while respecting the essence of that right and the principle of proportionality. 196. In their view, it was well-established that judges were under a professional duty to speak up in defence of the rule of law, with reference to the 2013 Sofia Declaration of the ENCJ. They further referred to the recently revised Compendium of the Judiciary’s Ethical Obligations of the French High Council for the Judiciary, which made it clear that judges were under a duty to “defend the independence of the judicial authority”. They submitted that limitations on judges’ freedom of expression should be subjected to the strictest scrutiny when these limitations sought to formally prevent or informally intimidate judges from speaking up in a situation where the independence and/or quality of their national judicial systems was undermined by legislative changes. 197. The interveners maintained that account should be taken of the judgment of 5 October 2015 of the Inter-American Court of Human Rights in López Lone et al. v. Honduras, where that court had stated that “at times of grave democratic crises ... the norms that ordinarily restrict the right of judges to participate in politics [were] not applicable to their actions in defence of the democratic order. Thus, it would be contrary to the independence inherent in the branches of State ... that judges could not speak out against a coup d’état”. 198. In a context where legislative changes had led to the activation of exceptional monitoring mechanisms such as the EU’s Article 7 TEU procedure and the Council of Europe’s full monitoring procedure due to concerns about the existence of a systemic threat to the rule of law in Poland, any limitation on judges’ freedom of expression had to be presumed to violate this fundamental right where judges spoke out on matters that affected the judiciary. At the same time, judges had to be considered to be under a professional duty to state clearly their opposition to any measure undermining judicial independence or targeting judges for their defence of the rule of law. 199. The interveners referred to the European Parliament’s resolution of 17 September 2020, in which that body had denounced “the smear campaign against Polish judges and the involvement of public officials therein”. One particularly disturbing aspect of the smear campaign, which had been ongoing for many years, was the secret establishment of a “troll farm” hosted within the Ministry of Justice. The large-scale propaganda against the judiciary in Poland had also been criticised by the UN Special Rapporteur on the independence of judges and lawyers. (f) Polish Judges’ Association Iustitia 200. The intervener maintained that the measures taken by the authorities with regard to the applicant had been aimed at creating a chilling effect on him and other judges who expressed criticism of the Government’s legislative reforms and had been prompted by the applicant’s public activity. The Court’s assessment (a) Whether there has been an interference (i) General principles 201. The Court has recognised in its case-law the applicability of Article 10 to civil servants in general (see Vogt v. Germany, 26 September 1995, § 53, Series A no. 323, and Guja v. Moldova [GC], no. 14277/04, § 52, ECHR 2008), and members of the judiciary (see, among many others, Wille, cited above, §§ 41-42; Harabin v. Slovakia (dec.), no. 62584/00, ECHR 2004 ‑ VI (“ Harabin (dec.), 2004”); and Baka, cited above, § 140). In cases concerning disciplinary proceedings against judges or their removal or appointment, the Court has had to ascertain first whether the measure complained of amounted to an interference with the exercise of the applicant’s freedom of expression – in the form of a “formality, condition, restriction or penalty” – or whether the impugned measure merely affected the exercise of the right to hold a public post in the administration of justice, a right not secured in the Convention. In order to answer this question, the scope of the measure must be determined by putting it in the context of the facts of the case and of the relevant legislation (see Wille, cited above, §§ 42 ‑ 43; Harabin (dec.), 2004, cited above; Kayasu v. Turkey, nos. 64119/00 and 76292/01, §§ 77-79, 13 November 2008; Kudeshkina, cited above, § 79; Poyraz v. Turkey, no. 15966/06, §§ 55-57, 7 December 2010; Harabin v. Slovakia, no. 58688/11, 20 November 2012; Baka, cited above, § 140; and Miroslava Todorova v. Bulgaria, no. 40072/13, § 153, 19 October 2021). 202. Where the Court has found that the measures complained of were exclusively or principally the result of the exercise by an applicant of his or her freedom of expression, it has taken the view that there was an interference with the right under Article 10 of the Convention (see Baka, cited above, § 151; Kayasu, cited above, § 80; Kudeshkina, cited above, §§ 79-80; and Cimperšek v. Slovenia, no. 58512/16, § 58, 30 June 2020). In cases where it has, by contrast, considered that the measures were mainly related to the applicant’s capacity to perform his or her duties, it found that there had been no interference under Article 10 (see Harabin, judgment cited above, § 151; Köseoğlu v. Turkey (dec.), no. 24067/05, §§ 25-26, 10 April 2018; Simić v. Bosnia ‑ Herzegovina (dec.), no. 75255/10, § 35, 15 November 2016; Harabin (dec.) 2004, cited above; and Miroslava Todorova, cited above, § 154). 203. To that end the Court takes account of the reasons relied upon by the authorities to justify the measures in question (see, for example, Harabin (dec.), 2004, cited above; Kövesi v. Romania, no. 3594/19, §§ 184-187, 5 May 2020; and Goryaynova v. Ukraine, no. 41752/09, § 54, 8 October 2020) together with, if appropriate, any arguments submitted in the context of subsequent appeal proceedings (see Kudeshkina, cited above, § 79; Köseoğlu, cited above, § 25; and, mutatis mutandis, Nenkova-Lalova v. Bulgaria, no. 35745/05, § 51, 11 December 2012). It must nevertheless carry out an independent assessment of all the evidence, including any inferences to be drawn from the facts as a whole and from the parties’ submissions (see Baka, cited above, § 143). It must in particular take account of the sequence of relevant events in their entirety, rather than as separate and distinct incidents (ibid., § 148; see also Kövesi, § 188 and Miroslava Todorova, § 155, both cited above). 204. Moreover, in so far as there is any prima facie evidence supporting the version of events submitted by the applicant and indicating the existence of a causal link between the measures complained of and freedom of expression, it will be for the Government to prove that the measures at issue were taken for other reasons (see Baka, §§ 149-151; Kövesi, § 189; and Miroslava Todorova, § 156, all cited above). (ii) Application of the general principles to the present case 205. As stated above, in order to ascertain whether the measures complained of amounted to an interference with the applicant’s exercise of freedom of expression, the scope of those measures must be determined by placing them in the context of the facts of the case and of the relevant legislation (see Wille, cited above, § 43, and Baka, cited above, § 143). 206. The Court notes that the applicant, in his professional capacity as the NCJ’s spokesperson, in the period between December 2015 and March 2018, publicly expressed his views or commented in the media on various legislative reforms affecting the Constitutional Court, the NCJ, the Supreme Court and ordinary courts. He criticised those various proposals for their incompatibility with the Constitution and pointed to threats to the rule of law and judicial independence stemming from them (see paragraphs 41-47 above). 207. The applicant alleged that a set of measures taken against him by the authorities in response to his critical statements on the Government’s reorganisation of the judiciary amounted to an interference with his freedom of expression (see paragraph 155 above; compare and contrast earlier cases where a single measure constituted such interference, for example, Baka (the premature termination of the applicant’s term of office as President of the Supreme Court), Kövesi (the applicant’s removal from her position as chief prosecutor) and Miroslava Todorova (disciplinary proceedings and sanctions against the President of the judges’ association)). 208. Among the measures constitutive of interference in his case, the applicant referred to the audit of his financial declarations carried out by the CBA between November 2016 and April 2018 (see paragraphs 48-69 above), the inspection of his work at the Cracow Regional Court ordered by the Ministry of Justice in April 2017 (see paragraphs 70-77 above), his dismissal from his position as spokesperson of the Cracow Regional Court in January 2018 (see paragraphs 78-83 above) and the declassification of his financial declaration ordered by the Minister of Justice on June 2018 (see paragraph 85 above). The Court notes at this juncture that the fact of being dismissed from the position of court spokesperson does not in itself entail an interference with freedom of expression as there is no right to hold such a position. However, this fact is part of the sequence of events and needs to be seen in the context of the accumulation of all the above-mentioned measures taken in respect of the applicant (see paragraph 211 below). 209. The applicant further referred to the premature termination of his term of office as a judicial member of the NCJ on the basis of the 2017 Amending Act, as a result of which he had ceased to act as the NCJ’s spokesperson. With regard to this measure, the Court observes that the 2017 Amending Act terminated the terms of office of all fifteen elected judicial members of the NCJ and did not concern solely the applicant. It has already found that the main objective of the 2017 Amending Act was for the legislative and the executive powers to achieve a decisive influence on the composition of the NCJ which, in turn, enabled those powers to interfere directly or indirectly in the judicial appointment procedure (see Advance Pharma sp. z o.o., § 344, and Grzęda, § 322, both cited above). In the light of the objective pursued by the authorities in the 2017 Amending Act, the Court considers that the termination of the applicant’s term of office as a judicial member of the NCJ entailing the loss of his position as the spokesperson of that body was to some extent connected with the exercise of his freedom of expression, but it was not primarily motivated by that factor. For those reasons, when analysing whether the authorities’ actions amounted to an interference with the exercise of the applicant’s freedom of expression, the Court will focus on the measures referred to in paragraph 208 above. 210. The impugned measures have to be seen in the context of the facts of the case. In Grzęda, the Court noted that the whole sequence of events in Poland vividly demonstrated that successive judicial reforms had been aimed at weakening judicial independence, starting with the grave irregularities in the election of judges of the Constitutional Court in December 2015, then, in particular, the remodelling of the NCJ and the setting-up of new chambers in the Supreme Court, while extending the Minister of Justice’s control over the courts and increasing his role in matters of judicial discipline (see Grzęda, cited above, § 348). The Grand Chamber went on to observe that as a result of the successive reforms, the judiciary – an autonomous branch of State power – was exposed to interference by the executive and legislative powers and thus substantially weakened (ibid.). 211. Taking account of the above-mentioned context and having regard to the sequence of events in their entirety, rather than as separate and distinct incidents, the Court considers that there is prima facie evidence of a causal link between the applicant’s exercise of his freedom of expression and the impugned measures taken by the authorities in his case (see paragraph 208 above). To begin with, all those measures followed the applicant’s successive statements. The audit began in November 2016, following a series of interviews given by the applicant and an article published in May-September 2016 in which he consistently and in strong terms referred to various perceived defects in the proposed reform of the NCJ and the judiciary (see paragraphs 41-43 above). The inspection of the applicant’s work as a judge was initiated in April 2017, shortly after his further critical comments on the reform published on the NCJ’s YouTube channel and in other media in January-March 2017 (see paragraphs 44-46 above). The two remaining measures, i.e. the dismissal from his position as spokesperson of the Cracow Regional Court in January 2018 and the declassification of his financial declaration in June 2018 were also taken subsequently to his publicly expressed criticism of the Government’s contemplated policies in respect of the judiciary. Secondly, the impugned measures were taken by the CBA, a governmental agency, the Minister of Justice or the president of the court appointed by the latter on the basis of transitional powers (see paragraph 78 above), i.e. authorities controlled or appointed by the executive. Thirdly, those measures, in particular the audit of the applicant’s financial declarations by the CBA and the immediate inspection of his work ordered by the Ministry of Justice on the basis of an anonymous letter (see paragraphs 70-72 above), do not appear to have been triggered by any substantiated specific irregularity on the applicant’s part. In contrast, the anonymous letter – which prompted the inspection of the applicant’s work in the Cracow Regional Court, merely one day after its receipt at the Ministry, was clearly and directly related to the applicant’s public statements concerning the reform of the judiciary and his activity in the media, implying that this in itself was sufficient to compromise his performance as a judge (see also paragraph 226 below). The above conclusion is further corroborated by the numerous documents submitted by the applicant which refer to the widespread perception that such a causal link existed. These include not only articles published in the Polish press, but also the reports adopted by the Monitoring Committee and the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (see paragraphs 105-106 above), as well as the report of the Council of Europe Commissioner for Human Rights following her visit to Poland (see paragraph 107 above). The Court would also refer to the report of Amnesty International (see paragraph 91 above) and the report of the Polish Judges’ Association Iustitia (see paragraph 92 above). In this connection, it further attaches importance to the resolution adopted on 26 February 2018 by the Assembly of Judges of the Cracow Regional Court (see paragraph 84 above). 212. The Government argued that the impugned measures were unconnected with the applicant’s exercise of freedom of expression or constituted neutral measures that were applied to all judges (see paragraphs 172 and 176-177 above). However, having regard to the entire context of the case, the Court does not find those reasons convincing or supported by specific evidence. Accordingly, it agrees with the applicant that the impugned measures referred to in paragraph 208 above were prompted by the views and criticisms that he had publicly expressed in his professional capacity. 213. In view of the above, the Court concludes that the impugned measures constituted an interference with the exercise of the applicant’s right to freedom of expression, as guaranteed by Article 10 of the Convention (see, mutatis mutandis, Wille, § 51; Kudeshkina, § 80; and Baka, § 152, all cited above). It remains therefore to be examined whether the interference was justified under Article 10 § 2. (b) Whether the interference was justified (i) “Prescribed by law” 214. The applicant pointed to the controversy surrounding his removal from the position of spokesperson of the Cracow Regional Court. With regard to the measures taken by the CBA and other authorities, he argued that they should be regarded as abusive, even though they had had some formal basis (see paragraph 165 above). The Government maintained that the impugned measures had been in accordance with the domestic law (see paragraphs 176 and 179 above). 215. The Court notes that the CBA’s audit of the applicant’s financial declarations, the inspection of his work and the declassification of his financial declaration seem to have been provided for by the domestic law. On the other hand, it appears that the relevant rules were not duly respected as regards the decision of the President of the Cracow Regional Court to dismiss the applicant from the position of spokesperson of that court. However, the Court will proceed on the assumption that the interference was “prescribed by law” for the purposes of paragraph 2 of Article 10, as the impugned interference breaches Article 10 for other reasons (see paragraph 228 below). (ii) Legitimate aim 216. The applicant maintained that the interference at issue had not pursued any legitimate aim within the meaning of Article 10 § 2 of the Convention (see paragraph 166 above). The Government did not put forward any arguments on this point. 217. Having regard to the overall context of the present case, the Court has serious doubts as to whether the interference complained of pursued any of the legitimate aims provided for in Article 10 § 2. However, it is not required to reach a final conclusion on this question since, in view of the reasons stated below (see paragraphs 220-228 below), the impugned interference cannot in any event be considered to have been “necessary in a democratic society” for the purposes of this provision (see Döner and Others v. Turkey, no. 29994/02, § 95, 7 March 2017). (iii) “Necessary in a democratic society” (α) General principles on freedom of expression 218. The general principles concerning the necessity of an interference with freedom of expression, reiterated many times by the Court, were restated, inter alia, in Baka (ibid., § 158-61). (β) General principles on freedom of expression of judges 219. The general principles concerning the freedom of expression of judges were summarised by the Court in its judgment in Baka (ibid., §§ 163 ‑ 167) as follows: “163. Given the prominent place among State organs that the judiciary occupies in a democratic society, the Court reiterates that this approach also applies in the event of restrictions on the freedom of expression of a judge in connection with the performance of his or her functions, albeit [that] the judiciary is not part of the ordinary civil service ... 164. The Court has recognised that it can be expected of public officials serving in the judiciary that they should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called in question ...The dissemination of even accurate information must be carried out with moderation and propriety ... The Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties ... It is for this reason that judicial authorities, in so far as concerns the exercise of their adjudicatory function, are required to exercise maximum discretion with regard to the cases with which they deal in order to preserve their image as impartial judges ... 165. At the same time, the Court has also stressed that having regard in particular to the growing importance attached to the separation of powers and the importance of safeguarding the independence of the judiciary, any interference with the freedom of expression of a judge in a position such as the applicant’s calls for close scrutiny on the part of the Court ... Furthermore, questions concerning the functioning of the justice system fall within the public interest, the debate of which generally enjoys a high degree of protection under Article 10 ... Even if an issue under debate has political implications, this is not in itself sufficient to prevent a judge from making a statement on the matter ... Issues relating to the separation of powers can involve very important matters in a democratic society which the public has a legitimate interest in being informed about and which fall within the scope of political debate ... 166. In the context of Article 10 of the Convention, the Court must take account of the circumstances and overall background against which the statements in question were made ... It must look at the impugned interference in the light of the case as a whole ..., attaching particular importance to the office held by the applicant, his statements and the context in which they were made. 167. Finally, [one must not overlook the] ‘chilling effect’ that the fear of sanction has on the exercise of freedom of expression, in particular on other judges wishing to participate in the public debate on issues related to the administration of justice and the judiciary ... This effect, which works to the detriment of society as a whole, is also a factor that concerns the proportionality of the sanction or punitive measure imposed ...” (γ) Application of those principles to the present case 220. The Court reiterates its finding (see paragraph 213 above) that the impugned interference was prompted by the views and criticisms that the applicant had publicly expressed in exercising his right to freedom of expression. It observes in this regard that the applicant expressed his views on the legislative reforms in issue in his professional capacity as a judicial member of the NCJ and the spokesperson of this body. It notes that the NCJ is constitutionally mandated to safeguard the independence of the courts and judges (Article 186 § 1 of the Constitution; see Grzęda, cited above, § 304), so it is evident that the applicant, acting as its spokesperson, had the right and duty to express his opinions on legislative reform affecting the judiciary. 221. The Court attaches particular importance to the office held by the applicant, whose functions and duties included expressing his views on the legislative reforms which were to have an impact on the judiciary and its independence. It notes also the extensive scope of the reforms which affected practically every segment of the judiciary (see paragraph 210 above). It refers in this connection to the Council of Europe instruments which recognise that each judge is responsible for promoting and protecting judicial independence (see paragraph 3 of the Magna Carta of Judges) and that judges and the judiciary should be consulted and involved in the preparation of legislation concerning their status and, more generally, the functioning of the judicial system (see paragraph 34 of Opinion no. 3 (2002) of the CCJE and paragraph 9 of the Magna Carta of Judges, cited above, paragraphs 109-110 above). 222. In the present case, the Court is assessing the situation of an applicant who was not only a judge, but also a member of a judicial council and its spokesperson. However, the Court would note that a similar approach would be applicable to any judge who exercises his freedom of expression – in conformity with the principles referred to in paragraph 219 above – with a view to defending the rule of law, judicial independence or other similar values falling within the debate on issues of general interest. When a judge makes such statements not only in his or her personal capacity, but also on behalf of a judicial council, judicial association or other representative body of the judiciary, the protection afforded to that judge will be heightened. Furthermore, the general right to freedom of expression of judges to address matters concerning the functioning of the justice system may be transformed into a corresponding duty to speak out in defence of the rule of law and judicial independence when those fundamental values come under threat. This duty has been recognised, inter alia, by the CCJE (see paragraph 41 of its Opinion no. 18 (2015) on the position of the judiciary and its relation with the other powers of state in a modern democracy, cited in paragraph 111 above), the UN Special Rapporteur on the independence of judges and lawyers (see paragraph 102 of his 2019 Report on freedom of expression, association and peaceful assembly of judges, cited in paragraph 103 above) and the General Assembly of the ENCJ (see paragraph (vii) of its 2013 Sofia Declaration, cited in paragraph 112 above). 223. The present case should also be distinguished from other cases in which the issue at stake was public confidence in the judiciary and the need to protect such confidence against destructive attacks (see Di Giovanni, § 81, and Kudeshkina, § 86, both cited above). The views and statements publicly expressed by the applicant did not contain any attacks against other members of the judiciary (compare Di Giovanni, cited above); nor did they concern criticisms with regard to the conduct of the judiciary dealing with pending proceedings (see Kudeshkina, cited above, § 94). 224. On the contrary, the applicant expressed his views and criticisms on legislative reforms related to the functioning of the judicial system, the status of the NCJ, the independence and irremovability of judges, and the lowering of the retirement age for judges, all of which are questions of public interest (see, Baka, cited above, § 171). His statements did not go beyond mere criticism from a strictly professional perspective. Accordingly, the Court considers that the applicant’s position and statements, which clearly fell within the context of a debate on matters of great public interest, called for a high degree of protection for his freedom of expression and strict scrutiny of any interference, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State (ibid.). It reiterates in this regard that given the prominent place that the judiciary occupies among State organs in a democratic society and the importance attached to the separation of powers and to the necessity of safeguarding the independence of the judiciary (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 196, 6 November 2018, with further references), the Court must be particularly attentive to the protection of members of the judiciary against measures that can threaten their judicial independence and autonomy (see Bilgen v. Turkey, no. 1571/07, § 58, 9 March 2021, and Grzęda, cited above, § 302). 225. In this connection, the Court must scrutinise the measures taken by the authorities in the applicant’s case. As regards the auditing of his financial declarations carried out by the CBA between November 2016 and April 2018, the Government submitted that it had been prompted by uncertainty as to their accuracy and had been of a routine nature. However, the Court notes that the impugned audit, which was triggered by some unspecified irregularity and lasted for a considerable period of time, i.e. seventeen months, appears not to have yielded any concrete results. According to the Government, the CBA submitted to the prosecuting authorities a report on irregularities that had been established in the applicant’s declarations. Nonetheless, they did not inform the Court about the nature of those irregularities, which in any event led to no further action on the part of the authorities. Furthermore, the Court has certain doubts about the legality of the CBA officers’ action in entering the premises of the NCJ in order to serve on the applicant a decision authorising an audit of his declarations, as the Government have not indicated a specific legal provision which required that the initiation of an audit required the relevant decision to be served on the person concerned by CBA officers. 226. With regard to the inspection of the applicant’s work at the Cracow Regional Court ordered by the Ministry of Justice, the Court observes that, as noted above, this inspection was initiated merely one day after receipt of the anonymous letter, which mostly concerned the applicant’s critical comments on the reform of the judiciary and his presence in the media, rather than any alleged misconduct on his part or his ability to exercise judicial functions (see paragraphs 70-72 and 211 above). The Court thus finds it striking that the Ministry should resort, in those circumstances, to initiating an inquiry into the discharge of the applicant’s judicial duties. As regards the applicant’s dismissal from his position as spokesperson of the Cracow Regional Court, the Court notes that, while it was in a court president’s power, at any time, to appoint or dismiss a spokesperson, the decision of the President of the Cracow Regional Court was taken without obtaining an opinion of the Board of that court, as required under section 31(1)(1) of the Act on the Organisation of Ordinary Courts (see paragraphs 80, 83-84 and 101 above). It further observes that the President of the Cracow Regional Court, Ms D.P.-W. took this decision merely six days after her appointment to this position by the Minister of Justice. Lastly, with regard to the applicant’s financial declaration, the Court observes that the Minister of Justice reversed, without providing any reasons, the earlier decision of the President of the Court of Appeal to grant confidential status to that declaration (see paragraph 85 above). 227. Against this background and having regard to the accumulation of measures taken by the authorities, it appears that they could be characterised as a strategy aimed at intimidating (or even silencing) the applicant in connection with the views that he had expressed in defence of the rule of law and judicial independence. On the material before it, the Court finds that no other plausible motive for the impugned measures has been advanced or can be discerned. It notes that the applicant is one of the most emblematic representatives of the judicial community in Poland who has steadily defended the rule of law and independence of the judiciary. The Court considers that the impugned measures undoubtedly had a “chilling effect” in that they must have discouraged not only him but also other judges from participating in public debate on legislative reforms affecting the judiciary and more generally on issues concerning the independence of the judiciary (see Baka, § 173, and Kövesi, § 209, both cited above). 228. On the basis of the above arguments, and keeping in mind the paramount importance of freedom of expression on matters of general interest, the Court is of the opinion that the impugned measures taken against the applicant were not “necessary in a democratic society” within the meaning of that provision. 229. Accordingly, the Court concludes that there has been a violation of Article 10 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 230. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 231. The applicant claimed 100,000 euros (EUR) in respect of non ‑ pecuniary damage for suffering and distress caused by the violation of his rights. He referred to the early termination of his office and the lack of any possibility of having that measure judicially reviewed. The applicant regarded the early termination of his term of office as a form of political repression and as preventing him from fulfilling his obligations related to the protection of judicial independence arising from his seat on the NCJ. 232. The applicant further claimed to have suffered significant distress owing to, and in the course of, the actions taken against him by the State authorities, including the CBA, tax authorities and the prosecution service. Those actions of the authorities had been widely commented upon by public officials and the applicant regarded this as a deliberate encroachment into his private life. He argued that the measures complained of had completely disrupted his family and professional life. The number of controls, investigations, inquiries, press comments, disciplinary proceedings and attacks on his good name had forced him to devote a great amount of his time and resources to defending himself. The applicant was apprehensive of another possible “attack” by the authorities under any trivial pretext. 233. The authorities’ actions targeting the applicant had taken their toll on his wife who had been forced to undergo therapy as well as on the applicant, who suffered from mental and physical ailments. In addition, it was painful for the applicant to encounter supporters of the ruling majority, who repeated allegations against him which were relayed as part of the smear campaign against him carried out by the public media. As a result, he had received numerous threats and insults of which he submitted a sample. 234. The Government asked the Court to reject the applicant’s claims, since in their opinion the application was inadmissible and, in any event, no violation of the Convention had occurred. Furthermore, the sum claimed was extremely exorbitant and unjustified in the light of the Court’s case-law. Were the Court to award any compensation to the applicant, the Government submitted that it should be reasonable and in line with the case-law in similar cases against Poland or other countries enjoying a similar economic level. 235. Making an assessment on an equitable basis and having regard to its finding of a violation of Article 10 of the Convention, the Court considers it reasonable to award the applicant EUR 15,000 in respect of non-pecuniary damage. Costs and expenses 236. The applicant also claimed EUR 20,000, inclusive of VAT, for the costs and expenses incurred before the Court. He submitted a copy of the legal services agreement between him and the Pietrzak Sidor and Partners Law Firm of 31 July 2018 together with a pro-forma invoice of 29 January 2021. 237. The Government argued that the amount claimed did not meet the requirements of adequacy and necessity. 238. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 10,000 covering costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicant. Default interest 239. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 § 1 and a violation of Article 10 (freedom of expression) of the Convention in the present case. Following the same reasoning as in the case Grzęda v. Poland (see above), it found that the lack of judicial review of the decision to remove the applicant from the NCJ had breached his right of access to a court. The Court also found that the accumulation of measures taken against the applicant – including his dismissal as spokesperson of a regional court, the audit of his financial declarations and the inspection of his judicial work – had been aimed at intimidating him because of the views that he had expressed in defence of the rule of law and judicial independence. In finding these violations, the Court emphasised the overall context of successive judicial reforms, which had resulted in the weakening of judicial independence and what has widely been described as the rule-of-law crisis in Poland. |
474 | Freedom of expression and electronic commerce | II. RELEVANT DOMESTIC LAW AND PRACTICE 33. The Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) provides as follows. Article 17 “ No one ’ s honour or good name shall be defamed. ” Article 19 “ 1. Everyone has the right to free self-realisation. 2. Everyone shall honour and consider the rights and freedoms of others, and shall observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. ” Article 45 “ 1. Everyone has the right freely to disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and the good name of others. This right may also be restricted by law for State and local government public servants, to protect a State or business secret or information received in confidence which has become known to them by reason of their office, and the family and private life of others, as well as in the interests of justice. 2. There is to be no censorship. ” 34. Section 138 of the Civil Code (General Principles) Act ( Tsiviilseadustiku üldosa seadus ) provides that rights are to be exercised and obligations performed in good faith. A right must not be exercised in an unlawful manner or with the aim of causing damage to another person. 35. Subsection 2 of section 134 of the Obligations Act ( Võlaõigusseadus ) provides: “ In the case of an obligation to compensate for damage arising from ... a breach of a personality right, in particular from defamation, the obligated person shall compensate the aggrieved person for non-pecuniary damage only if this is justified by the gravity of the breach, in particular by physical or emotional distress. ” 36. Section 1043 of the Obligations Act provides that a person (tortfeasor) who unlawfully causes damage to another person (victim) must compensate for the damage if the tortfeasor is culpable ( süüdi ) of causing the damage or is liable for causing the damage pursuant to the law. 37. Section 1045 of the Obligations Act provides that the causing of damage is unlawful if, inter alia, it results from a breach of a personality right of the victim. 38. The Obligations Act further provides. Section 1046 – Unlawfulness of damage to personality rights “ (1) Injuring a person ’ s honour, inter alia, by passing an undue value judgment, unjustified use of a person ’ s name or image, or breaching the inviolability of a person ’ s private life or another personality right, is unlawful unless otherwise provided by law. In establishing such unlawfulness, the type of the breach, the reason and motive for the breach and the gravity of the breach relative to the aim pursued thereby shall be taken into consideration. (2) The breach of a personality right is not unlawful if the breach is justified in view of other legal rights protected by law and the rights of third parties or public interests. In such cases, unlawfulness shall be established on the basis of a comparative assessment of the different legal rights and interests protected by law. ” Section 1047 – Unlawfulness of disclosure of incorrect information “ (1) A breach of personality rights or interference with the economic or professional activities of a person by way of disclosure [ avaldamine ] of incorrect information, or by way of incomplete or misleading disclosure of information concerning the person or the person ’ s activities, is unlawful unless the person who discloses such information proves that, at the time of such disclosure, he or she was not aware and was not required to be aware that such information was incorrect or incomplete. (2) Disclosure of defamatory matters concerning a person, or matters which may adversely affect a person ’ s economic situation, is deemed to be unlawful unless the person who discloses such matters proves that they are true. (3) Regardless of the provisions of subsections (1) and (2) of this section, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential breach. (4) In the event of disclosure of incorrect information, the victim may demand that the person who has disclosed such information refute the information or publish a correction at his or her own expense, regardless of whether the disclosure of the information was unlawful or not. ” Section 1050 – Culpability [ süü ] as basis for liability “ (1) Unless otherwise provided by law, a tortfeasor is not liable for the causing of damage if the tortfeasor proves that he or she is not culpable [ süüdi ] of causing the damage. (2) The situation, age, education, knowledge, abilities and other personal characteristics of a person shall be taken into consideration in the assessment of the culpability [ süü ] of the person for the purposes of this Chapter. (3) If several persons are liable for compensation for damage and, pursuant to law, one or more of them are liable for compensation for unlawfully caused damage regardless of whether or not they are culpable, the wrongfulness of the behaviour and the form of the culpability of the persons liable for compensation for the damage shall be taken into consideration in apportioning among them the obligation to compensate for the damage. ” Section 1055 – Prohibition on damaging actions “ (1) If unlawful damage is caused continually or a threat is made that unlawful damage will be caused, the victim or the person who is threatened has the right to demand the cessation of the behaviour causing the damage or of the threats of such behaviour. In the event of bodily injury, damage to health or a breach of the inviolability of personal life or of any other personality rights, it may be demanded, inter alia, that the tortfeasor be prohibited from approaching others (restraining order), that the use of housing or communications be regulated, or that other similar measures be applied. (2) The right to demand the cessation of behaviour causing damage as specified in subsection (1) of this section shall not apply if it is reasonable to expect that such behaviour can be tolerated in conditions of human coexistence or in view of a significant public interest. In such cases, the victim shall have the right to make a claim for compensation for damage caused unlawfully. ... ” 39. The Information Society Services Act ( Infoühiskonna teenuse seadus ) provides as follows. Section 8 – Restricted liability in the case of mere transmission of information and provision of access to a public data communications network “ (1) Where a service is provided that consists of the mere transmission in a public data communication network of information provided by a recipient of the service, or the provision of access to a public data communication network, the service provider shall not be liable for the information transmitted, on condition that the provider: 1. does not initiate the transmission; 2. does not select the receiver of the transmission; and 3. does not select or modify the information contained in the transmission. (2) The acts of transmission and of provision of access within the meaning of subsection 1 of this section include the automatic, intermediate and transient storage of the information transmitted, in so far as this takes place for the sole purpose of carrying out the transmission in the public data communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. ” Section 9 – Restricted liability in the case of temporary storage of information in cache memory “ (1) Where a service is provided that consists of the transmission in a public data communication network of information provided by a recipient of the service, the service provider shall not be liable for the automatic, intermediate and temporary storage of that information if the method of transmission concerned requires caching for technical reasons and the caching is performed for the sole purpose of making more efficient the information ’ s onward transmission to other recipients of the service at their request, on condition that: 1. the provider does not modify the information; 2. the provider complies with conditions on access to the information; 3. the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used in the industry; 4. the provider does not interfere with the lawful use of technology which is widely recognised and used by the industry to obtain data on the use of the information; 5. the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court, the police or a State supervisory authority has ordered such removal. ” Section 10 – Restricted liability in the case of provision of an information storage service “ (1) Where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider shall not be liable for the information stored at the request of a recipient of the service, on condition that: 1. the provider does not have actual knowledge of the content of the information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; 2. the provider, upon obtaining knowledge or awareness of the facts specified in paragraph 1 of this subsection, acts expeditiously to remove or to disable access to the information. (2) Subsection 1 of this section shall not apply when the recipient of the service is acting under the authority or the control of the provider. ” Section 11 – No obligation to monitor “ (1) A service provider specified in sections 8 to 10 of this Act is not obliged to monitor information upon the mere transmission thereof or provision of access thereto, temporary storage thereof in cache memory or storage thereof at the request of the recipient of the service, nor is the service provider obliged actively to seek information or circumstances indicating illegal activity. (2) The provisions of subsection 1 of this section shall not restrict the right of an official exercising supervision to request the disclosure of such information by a service provider. (3) Service providers are required promptly to inform the competent supervisory authorities of alleged illegal activities undertaken or information provided by recipients of their services specified in sections 8 to 10 of this Act, and to communicate to the competent authorities information enabling the identification of recipients of their service with whom they have storage agreements. ... ” 40. Articles 244 et seq. of the Code of Civil Procedure ( Tsiviilkohtumenetluse seadustik ) provide for pre-trial taking of evidence ( eeltõendamismenetlus ) – a procedure in which evidence may be taken before the judicial proceedings have even been initiated if it can be presumed that evidence might be lost or that using the evidence afterwards might involve difficulties. 41. In a judgment of 21 December 2005 (case no. 3-2-1-95-05), the Supreme Court found that, for the purposes of section 1047 of the Obligations Act, disclosure ( avaldamine ) meant disclosure of information to third parties. A person who transmitted information to a media publisher ( meediaväljaanne ) could be considered a discloser ( avaldaja ) even if he or she was not the publisher of the article ( ajaleheartikli avaldaja ) in question. The Supreme Court has reiterated the same position in its subsequent judgments, for example in a judgment of 21 December 2010 (case no. 3 ‑ 2 ‑ 1-67-10). 42. In a number of domestic cases, actions for defamation have been brought against several defendants, including, for example, a publisher of a newspaper and the author of an article (Supreme Court judgment of 7 May 1998 in case no. 3-2-1-61-98), a publisher of a newspaper and an interviewee (Supreme Court judgment of 1 December 1997 in case no. 3 ‑ 2 ‑ 1-99-97), and solely against a publisher of a newspaper (Supreme Court judgments of 30 October 1997 in case no. 3-2-1-123-97, and 10 October 2007 in case no. 3-2-1-53-07). 43. Following the Supreme Court ’ s judgment of 10 June 2009 in the case giving rise to the present case before the Court (case no. 3-2-1-43-09), several lower courts have resolved the issue of liability in respect of comments relating to online news articles in a similar manner. Thus, in a judgment of 21 February 2012, the Tallinn Court of Appeal (case no. 2 ‑ 08 ‑ 76058) upheld a lower court ’ s judgment concerning a defamed person ’ s claim against a publisher of a newspaper. The publisher was found liable for defamatory online comments posted by readers in the newspaper ’ s online comments section. The courts found that the publisher was a content service provider. They rejected the publisher ’ s request for a preliminary ruling from the Court of Justice of the European Union (CJEU), finding that it was evident that the defendant did not satisfy the criteria for a passive service provider as previously interpreted by the CJEU and the Supreme Court, and that the relevant rules were sufficiently clear. Therefore, no new directions from the CJEU were needed. The courts also noted that, pursuant to the judgment of 23 March 2010 of the CJEU (Joined Cases C ‑ 236/08 to C ‑ 238/08, Google France SARL and Google Inc. [2010] ECR I ‑ 2417), it was for the national courts to assess whether the role played by a service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. The courts considered that this was not the case in the matter before them. As the publisher had already deleted the defamatory comments by the time of the delivery of the judgment, no ruling was made on that issue; the plaintiff ’ s claim in respect of non-pecuniary damage was dismissed. A similar judgment was handed down by the Tallinn Court of Appeal on 27 June 2013 (case no. 2-10-46710). In that case as well, an Internet news portal was held liable for defamatory comments posted by readers and the plaintiff ’ s claim in respect of non-pecuniary damage was dismissed. III. RELEVANT INTERNATIONAL INSTRUMENTS A. Council of Europe documents 44. On 28 May 2003, at the 840th meeting of the Ministers ’ Deputies, the Committee of Ministers of the Council of Europe adopted a declaration on freedom of communication on the Internet. The relevant parts of the declaration read as follows. “ The member states of the Council of Europe, ... Convinced also that it is necessary to limit the liability of service providers when they act as mere transmitters, or when they, in good faith, provide access to, or host, content from third parties; Recalling in this respect Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce); Stressing that freedom of communication on the Internet should not prejudice the human dignity, human rights and fundamental freedoms of others, especially minors; Considering that a balance has to be found between respecting the will of users of the Internet not to disclose their identity and the need for law enforcement authorities to trace those responsible for criminal acts; ... Declare that they seek to abide by the following principles in the field of communication on the Internet: Principle 1: Content rules for the Internet Member states should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery. ... Principle 3: Absence of prior state control Public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers. This does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries. Provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality. ... Principle 6: Limited liability of service providers for Internet content Member states should not impose on service providers a general obligation to monitor content on the Internet to which they give access, that they transmit or store, nor that of actively seeking facts or circumstances indicating illegal activity. Member states should ensure that service providers are not held liable for content on the Internet when their function is limited, as defined by national law, to transmitting information or providing access to the Internet. In cases where the functions of service providers are wider and they store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware, as defined by national law, of their illegal nature or, in the event of a claim for damages, of facts or circumstances revealing the illegality of the activity or information. When defining under national law the obligations of service providers as set out in the previous paragraph, due care must be taken to respect the freedom of expression of those who made the information available in the first place, as well as the corresponding right of users to the information. In all cases, the above-mentioned limitations of liability should not affect the possibility of issuing injunctions where service providers are required to terminate or prevent, to the extent possible, an infringement of the law. Principle 7: Anonymity In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements in the fields of justice and the police. ” 45. In its Recommendation CM/ Rec( 2007)16 to member States on measures to promote the public service value of the Internet (adopted on 7 November 2007), the Committee of Ministers noted that the Internet could, on the one hand, significantly enhance the exercise of certain human rights and fundamental freedoms while, on the other, it could adversely affect these and other such rights. It recommended that the member States draw up a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies. 46. Recommendation CM/ Rec( 2011)7 of the Committee of Ministers to member states on a new notion of media (adopted on 21 September 2011) reads as follows. “ ... The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe recommends that member states: – adopt a new, broad notion of media which encompasses all actors involved in the production and dissemination, to potentially large numbers of people, of content (for example information, analysis, comment, opinion, education, culture, art and entertainment in text, audio, visual, audiovisual or other form) and applications which are designed to facilitate interactive mass communication (for example social networks) or other content-based large-scale interactive experiences (for example online games), while retaining (in all these cases) editorial control or oversight of the contents; – review regulatory needs in respect of all actors delivering services or products in the media ecosystem so as to guarantee people ’ s right to seek, receive and impart information in accordance with Article 10 of the European Convention on Human Rights, and to extend to those actors relevant safeguards against interference that might otherwise have an adverse effect on Article 10 rights, including as regards situations which risk leading to undue self-restraint or self-censorship; – apply the criteria set out in the appendix hereto when considering a graduated and differentiated response for actors falling within the new notion of media based on relevant Council of Europe media-related standards, having regard to their specific functions in the media process and their potential impact and significance in ensuring or enhancing good governance in a democratic society; ... ” The Appendix to the Recommendation states as follows, in so far as relevant. “ 7. A differentiated and graduated approach requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe. ... 30. Editorial control can be evidenced by the actors ’ own policy decisions on the content to make available or to promote, and on the manner in which to present or arrange it. Legacy media sometimes publicise explicitly written editorial policies, but they can also be found in internal instructions or criteria for selecting or processing (for example verifying or validating) content. In the new communications environments, editorial policies can be embedded in mission statements or in terms and conditions of use (which may contain very detailed provisions on content), or may be expressed informally as a commitment to certain principles (for example netiquette, motto). ... 32. Editorial process can involve users (for example peer review and take down requests) with ultimate decisions taken according to an internally defined process and having regard to specified criteria (reactive moderation). New media often resort to ex post moderation (often referred to as post-moderation) in respect of user generated content, which may at first sight be imperceptible. Editorial processes may also be automated (for example in the case of algorithms ex ante selecting content or comparing content with copyrighted material). ... 35. Again, it should be noted that different levels of editorial control go along with different levels of editorial responsibility. Different levels of editorial control or editorial modalities (for example ex ante as compared with ex post moderation) call for differentiated responses and will almost certainly permit best to graduate the response. 36. Consequently, a provider of an intermediary or auxiliary service which contributes to the functioning or accessing of a media but does not – or should not – itself exercise editorial control, and therefore has limited or no editorial responsibility, should not be considered to be media. However, their action may be relevant in a media context. Nonetheless, action taken by providers of intermediary or auxiliary services as a result of legal obligations (for example take down of content in response to a judicial order) should not be considered as editorial control in the sense of the above. ... 63. The importance of the role of intermediaries should be underlined. They offer alternative and complementary means or channels for the dissemination of media content, thus broadening outreach and enhancing effectiveness in media ’ s achievements of its purposes and objectives. In a competitive intermediaries and auxiliaries market, they may significantly reduce the risk of interference by authorities. However, given the degree to which media have to rely on them in the new ecosystem, there is also a risk of censorship operated through intermediaries and auxiliaries. Certain situations may also pose a risk of private censorship (by intermediaries and auxiliaries in respect of media to which they provide services or content they carry). ” 47. On 16 April 2014 Recommendation CM/ Rec( 2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users was adopted. The relevant part of the Guide reads as follows. Freedom of expression and information “ You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means: 1. you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. You should have due regard to the reputation or rights of others, including their right to privacy; 2. restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight; ... 6. you may choose not to disclose your identity online, for instance by using a pseudonym. However, you should be aware that measures can be taken, by national authorities, which might lead to your identity being revealed. ” B. Other international documents 48. In his report of 16 May 2011 (A/HRC/17/27) to the Human Rights Council, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following. “ 25. As such, legitimate types of information which may be restricted include child pornography (to protect the rights of children), hate speech (to protect the rights of affected communities), defamation (to protect the rights and reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of others), and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life). ... 27. In addition, the Special Rapporteur emphasizes that due to the unique characteristics of the Internet, regulations or restrictions which may be deemed legitimate and proportionate for traditional media are often not so with regard to the Internet. For example, in cases of defamation of individuals ’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate. ... ... 43. The Special Rapporteur believes that censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author. Indeed, no State should use or force intermediaries to undertake censorship on its behalf ... ... 74. Intermediaries play a fundamental role in enabling Internet users to enjoy their right to freedom of expression and access to information. Given their unprecedented influence over how and what is circulated on the Internet, States have increasingly sought to exert control over them and to hold them legally liable for failing to prevent access to content deemed to be illegal. ” 49. A Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE (Organization for Security and Co-operation in Europe) Representative on Freedom of the Media and the OAS (Organization of American States) Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, stated the following: “ No one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content. ” IV. RELEVANT EUROPEAN UNION AND COMPARATIVE LAW MATERIAL A. European Union instruments and case-law 1. Directive 2000/31/EC 50. The relevant parts of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) provide as follows. “ (9) The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression. ... (42) The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. (43) A service provider can benefit from the exemptions for ‘ mere conduit ’ and for ‘ caching ’ when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission. (44) A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of ‘ mere conduit ’ or ‘ caching ’ and as a result cannot benefit from the liability exemptions established for these activities. (45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it. (46) In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States ’ possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information. (47) Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation. (48) This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities. ... Article 1 Objective and scope 1. This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. ... Article 2 Definitions For the purpose of this Directive, the following terms shall bear the following meanings: (a) ‘ information society services ’ : services within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC; (b) ‘ service provider ’ : any natural or legal person providing an information society service; (c) ‘ established service provider ’ : a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider; ... Section 4: Liability of intermediary service providers Article 12 ‘ Mere conduit ’ 1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. 2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. 3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement. Article 13 ‘ Caching ’ 1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information ’ s onward transmission to other recipients of the service upon their request, on condition that: (a) the provider does not modify the information; (b) the provider complies with conditions on access to the information; (c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry; (d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and (e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement. 2. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement. Article 14 Hosting 1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. 2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider. 3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information. Article 15 No general obligation to monitor 1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. 2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements. ” 2. Directive 98/34/EC as amended by Directive 98/48/EC 51. Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC, provides as follows: Article 1 “ For the purposes of this Directive, the following meanings shall apply : ... 2. ‘ service ’, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. For the purposes of this definition: – ‘ at a distance ’ means that the service is provided without the parties being simultaneously present, – ‘ by electronic means ’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means, – ‘ at the individual request of a recipient of services ’ means that the service is provided through the transmission of data on individual request. An indicative list of services not covered by this definition is set out in Annex V. This Directive shall not apply to: – radio broadcasting services, – television broadcasting services covered by point (a) of Article 1 of Directive 89/552/EEC. ” 3. Case-law of the CJEU 52. In a judgment of 23 March 2010 (Joined Cases C ‑ 236/08 to C ‑ 238/08 Google France SARL and Google Inc. ), the CJEU considered that, in order to establish whether the liability of a referencing service provider could be limited under Article 14 of the Directive on electronic commerce, it was necessary to examine whether the role played by that service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. Article 14 of the Directive on electronic commerce had to be interpreted as meaning that the rule laid down therein applied to an Internet referencing service provider in the event that that service provider had not played an active role of such a kind as to give it knowledge of or control over the data stored. If it had not played such a role, that service provider could not be held liable for the data which it had stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser ’ s activities, it had failed to act expeditiously to remove or to disable access to the data concerned. 53. In a judgment of 12 July 2011 (Case C ‑ 324/09, L ’ Oréal SA and Others ), the CJEU ruled that Article 14 § 1 of the Directive on electronic commerce was to be interpreted as applying to the operator of an online marketplace where that operator had not played an active role allowing it to have knowledge of or control over the data stored. The operator played such a role when it provided assistance which entailed, in particular, optimising the presentation of the offers for sale in question or promoting them. Where the operator of the online marketplace had not played such an active role and the service provided fell, as a consequence, within the scope of Article 14 § 1 of the Directive on electronic commerce, the operator none the less could not, in a case which could result in an order to pay damages, rely on the exemption from liability provided for under that Article if it had been aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question had been unlawful and, in the event of it being so aware, had failed to act expeditiously in accordance with Article 14 § 1 (b) of the Directive on electronic commerce. 54. In a judgment of 24 November 2011 (Case C-70/10, Scarlet Extended SA ), the CJEU ruled that an injunction could not be made against an Internet service provider requiring it to install a system for filtering all electronic communications passing via its services, in particular those involving the use of peer-to-peer software, which applied indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying on that provider ’ s network the movement of electronic files containing a musical, cinematographic or audio - visual work in respect of which the applicant claimed to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which would infringe copyright. 55. In a judgment of 16 February 2012 (Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA ( SABAM ) ) the CJEU held that the Directive on electronic commerce and Directives 2000/31/EC, 2001/29/EC and 2004/48/EC precluded a national court from issuing an injunction against a hosting service provider requiring it to install a system for filtering information stored on its servers by its service users, which applied indiscriminately to all those users, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying electronic files containing musical, cinematographic or audio - visual work in respect of which the applicant for the injunction claimed to hold intellectual property rights, with a view to preventing those works from being made available to the public in breach of copyright. 56. In a judgment of 13 May 2014 (Case C-131/12, Google Spain SL and Google Inc. ), the CJEU was called upon to interpret Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. It found that the activity of an Internet search engine was to be classified as “ processing of personal data ” within the meaning of Directive 95/46/EC and held that such processing of personal data, carried out by the operator of a search engine, was liable to affect significantly the fundamental rights to privacy and to the protection of personal data (guaranteed under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union) when the search by means of that engine was carried out on the basis of an individual ’ s name, since that processing enabled any Internet user to obtain through the list of results a structured overview of the information relating to that individual that could be found on the Internet and thereby to establish a more or less detailed profile of him or her. Furthermore, the effect of the interference with the rights of the data subject was heightened on account of the important role played by the Internet and search engines in modern society, which rendered the information contained in such a list of results ubiquitous. In the light of the potential seriousness of that interference, it could not be justified merely by the economic interest of the operator. The CJEU considered that a fair balance should be sought between the legitimate interest of Internet users in having access to the information and the data subject ’ s fundamental rights. The data subject ’ s fundamental rights, as a general rule, overrode the interest of Internet users, but that balance might, however, depend on the nature of the information in question and its sensitivity for the data subject ’ s private life and on the interest of the public in having that information. The CJEU held that in certain cases the operator of a search engine was obliged to remove from the list of results displayed following a search made on the basis of a person ’ s name links to web pages, published by third parties and containing information relating to that person, even when its publication in itself on the web pages in question was lawful. That was so in particular where the data appeared to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they had been processed and in the light of the time that had elapsed. 57. In a judgment of 11 September 2014 (Case C-291/13, Sotiris Papasavvas ), the CJEU found that, since a newspaper publishing company which posted an online version of a newspaper on its website had, in principle, knowledge of the information which it posted and exercised control over that information, it could not be considered to be an “ intermediary service provider ” within the meaning of Articles 12 to 14 of Directive 2000/31 /EC, whether or not access to that website was free of charge. Thus, it held that the limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31 /EC did not apply to the case of a newspaper publishing company which operated a website on which the online version of a newspaper was posted, that company being, moreover, remunerated by income generated by commercial advertisements posted on the website, since it had knowledge of the information posted and exercised control over that information, whether or not access to the website was free of charge. B. Comparative law material 58. From the information available to the Court, it would appear that in a number of the member States of the Council of Europe – which are also member States of the European Union – the Directive on electronic commerce, as transposed into national law, constitutes a primary source of law in the area in question. It would also appear that the greater the involvement of the operator in the third-party content before online publication – whether through prior censoring, editing, selection of recipients, requesting comments on a predefined subject or the adoption of content as the operator ’ s own – the greater the likelihood that the operator will be held liable for that content. Some countries have enacted certain further regulations specifically concerning the take-down procedures relating to allegedly unlawful content on the Internet, and provisions concerning distribution of liability in this context. THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 59. The applicant company complained that holding it liable for the comments posted by the readers of its Internet news portal infringed its freedom of expression as provided for in Article 10 of the Convention, which reads as follows. “ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ” 60. The Government contested that argument. A. The Chamber judgment 61. In its judgment of 10 October 2013, the Chamber noted at the outset that the parties ’ views diverged as to the applicant company ’ s role in the present case. According to the Government, the applicant company was to be considered the discloser of the defamatory comments, whereas the applicant company was of the opinion that its freedom to impart information created and published by third parties was at stake, and that the applicant company itself was not a publisher of the third-party comments. The Chamber did not proceed to determine the exact role to be attributed to the applicant company ’ s activities and noted that it was not, in substance, in dispute between the parties that the domestic courts ’ decisions in respect of the applicant company constituted an interference with its freedom of expression guaranteed under Article 10 of the Convention. 62. As regards the lawfulness of the interference, the Chamber rejected the applicant company ’ s argument that the interference with its freedom of expression was not “ prescribed by law ”. The Chamber observed that the domestic courts had found that the applicant company ’ s activities did not fall within the scope of the Directive on electronic commerce and the Information Society Services Act. It considered that it was not its task to take the place of the domestic courts and that it was primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Chamber was furthermore satisfied that the relevant provisions of the civil law – although they were quite general and lacked detail in comparison with, for example, the Information Society Services Act – along with the relevant case-law, made it clear that a media publisher was liable for any defamatory statements made in its publication. The Chamber had regard to the fact that the applicant company was a professional publisher which operated one of the largest news portals in Estonia, and also that a degree of notoriety had been attributable to comments posted in its commenting area. Against that background, the Chamber considered that the applicant company had been in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail. 63. The Chamber further found that the restriction of the applicant company ’ s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. In the Chamber ’ s view, the fact that the actual authors of the comments were also in principle liable did not remove the legitimate aim of holding the applicant company liable for any damage to the reputation and rights of others. 64. As regards the proportionality of the interference, the Chamber noted that there was no dispute that the comments in question had been of a defamatory nature. In assessing the proportionality of the interference with the applicant company ’ s freedom of expression, the Chamber had regard to the following elements. It examined firstly the context of the comments, secondly, the measures applied by the applicant company in order to prevent or remove defamatory comments, thirdly, the liability of the actual authors of the comments as an alternative to the applicant company ’ s liability, and, fourthly, the consequences of the domestic proceedings for the applicant company. 65. In particular, the Chamber considered that the news article published by the applicant company that had given rise to the defamatory comments had concerned a matter of public interest and the applicant company could have foreseen the negative reactions and exercised a degree of caution in order to avoid being held liable for damaging the reputation of others. However, the prior automatic filtering and notice-and-take-down system used by the applicant company had not ensured sufficient protection for the rights of third parties. Moreover, publishing news articles and making readers ’ comments on them public had been part of the applicant company ’ s professional activities and its advertising revenue depended on the number of readers and comments. The applicant company had been able to exercise a substantial degree of control over readers ’ comments and it had been in a position to predict the nature of the comments a particular article was liable to prompt and to take technical or manual measures to prevent defamatory statements from being made public. Furthermore, there had been no realistic opportunity of bringing a civil claim against the actual authors of the comments as their identity could not easily be established. In any event, the Chamber was not convinced that measures allowing an injured party to bring a claim only against the authors of defamatory comments would have guaranteed effective protection of the injured party ’ s right to respect for his or her private life. It had been the applicant company ’ s choice to allow comments by non-registered users, and by doing so it had to be considered to have assumed a certain responsibility for such comments. For all the above reasons, and considering the moderate amount of damages the applicant company had been ordered to pay, the restriction on its freedom of expression was considered to have been justified and proportionate. There had accordingly been no violation of Article 10 of the Convention. B. The parties ’ submissions to the Grand Chamber 1. The applicant company (a) General remarks 66. The applicant company argued that in today ’ s world, Internet media content was increasingly created by the users themselves. User-generated content was of high importance – comments on news stories and articles often raised serious debates in society and even informed journalists of issues that were not publicly known, thereby contributing to the initiation of journalistic investigations. The possibility for “ everyone ” to contribute to public debate advanced democracy and fulfilled the purposes of freedom of expression in the best possible way. It was a great challenge in this setting to hold those who infringed the rights of others accountable while avoiding censorship. 67. As regards user-generated content, the applicant company was of the opinion that it was sufficient for a host to expeditiously remove third-party content as soon as it became aware of its illegal nature. If this was deemed insufficient by the Court, anonymous public speech would be prohibited or there would be arbitrary restrictions on commenters ’ freedom of communication by the intermediary, which would be impelled to err on the side of caution to avoid possible subsequent liability. (b) Delfi ’ s role 68. The applicant company called on the Grand Chamber to look at the case as a whole, including the question whether the applicant company was to be characterised as a traditional publisher or an intermediary. A publisher was liable for all content published by it regardless of the authorship of the particular content. However, the applicant company insisted that it should be regarded as an intermediary and it had as such been entitled to follow the specific and foreseeable law limiting the obligation to monitor third-party comments. It argued that intermediaries were not best suited to decide upon the legality of user-generated content. This was especially so in respect of defamatory content since the victim alone could assess what caused damage to his reputation. (c) Lawfulness 69. The applicant company argued that the interference with its freedom of expression – including its right to store information and to enable users to impart their opinions – was not prescribed by law. It submitted that there was no legislation or case-law stating that an intermediary was to be considered a publisher of content which it was not aware of. On the contrary, the applicable law expressly prohibited the imposition of liability on service providers for third-party content. In this connection, the applicant company referred to the Directive on electronic commerce, the Estonian Information Society Services Act and the Council of Europe Declaration on freedom of communication on the Internet. The Directive provided for limited and notice-based liability with take-down procedures for illegal content. Service providers were exempted from liability where, upon obtaining actual knowledge of illegal activities, they acted expeditiously to remove or disable access to the information concerned. Such removal or disabling of access had to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level ( Recital 46 of the Preamble to the Directive). The applicant company argued that this law was indisputably formulated with sufficient precision to enable a citizen to regulate his conduct. According to the applicant company, its behaviour had been in full compliance with the applicable law as it had removed the defamatory comments the same day it had been notified by the original plaintiff. 70. The applicant company further argued that even the existing tort law did not classify disseminators (postal workers, libraries, bookstores and others) as publishers. Thus, it remained entirely unclear how the existing tort law had been applied to a “ novel area related to new technologies ” as held in the Chamber judgment, that is, to an online news portal operator providing a service enabling users to interact with journalists and each other and to contribute valuable ideas to the discussion of matters of public interest. There was no law imposing an obligation on the applicant company to proactively monitor user comments. (d) Legitimate aim 71. The applicant company did not dispute that the interference in question had a legitimate aim. (e) Necessary in a democratic society 72. According to the applicant company, the interference was not necessary in a democratic society. It argued that as a result of the Chamber judgment it had two choices. Firstly, it could employ an army of highly trained moderators to patrol (in real time) each message board (for each news article) to screen any message that could be labelled defamatory (or that could infringe intellectual property rights, inter alia ); at the end of the day, these moderators would, just in case, remove any sensitive comments and all discussions would be moderated so that they were limited to the least controversial issues. Otherwise, it could simply avoid such a massive risk and shut down these fora altogether. Either way, the technological capability to provide ordinary readers with an opportunity to comment freely on daily news and assume responsibility independently for their own comments would be abandoned. 73. The applicant company argued that the Supreme Court ’ s judgment had had a “ chilling effect ” on freedom of expression and that it had restricted the applicant company ’ s freedom to impart information. It amounted to the establishment of an obligation to censor private individuals. 74. In support of its argument that the interference was not necessary in a democratic society, the applicant company relied on the following factors. 75. Firstly, it argued that the comments were reactions from members of the public to an event caused by the Saaremaa Shipping Company and not to the article as such. Furthermore, the article was a balanced and neutral one. It addressed an issue of great importance to the residents of the biggest island of Estonia affecting their everyday lives. The readers ’ negative reactions had not been caused by the article but by the shipping company. 76. Secondly, the applicant company had taken sufficient measures to prevent or remove defamatory comments; in the present case, the comments in question had been removed on the same day that the applicant company had been notified of them. 77. Thirdly, the applicant company argued that the actual authors of the comments should bear responsibility for their contents. It disagreed with the Chamber ’ s finding that it was difficult to establish the identity of the authors of the comments and contended that the authors ’ identities could be established in the “ pre-trial taking of evidence ” procedure under Article 244 of the Code of Civil Procedure. Once the names and addresses of the authors were established, a claim against them could be brought without any difficulties. 78. Fourthly, the applicant company insisted that there was no pressing social need for a strict liability standard for service providers. It argued that there was a European consensus that no service provider should be liable for content of which it was not the author. Accordingly, the margin of appreciation afforded to the Contracting States in this respect was necessarily a narrow one. Furthermore, it considered that the modest sum it had been ordered to pay in compensation for non-pecuniary damage did not justify the interference. It also emphasised that if the applicant company enjoyed limited liability the original plaintiff would not have been left without a remedy – he could have sued the actual authors of the comments. The applicant company objected to the establishment of private censorship and contended that it was sufficient to have a two-pronged system for the protection of the rights of third parties: a notice-and-take-down system and the possibility of bringing a claim against the authors of defamatory comments. There was no convincingly established “ pressing social need ” for the liability of Internet service providers. 79. The applicant company also emphasised the importance of anonymity for free speech on the Internet; this encouraged the full involvement of all, including marginalised groups, political dissidents and whistle-blowers, and allowed individuals to be safe from reprisals. 80. Lastly, the applicant company contended that the domestic courts had clearly misinterpreted European Union (EU) law. It submitted that the Chamber judgment had created a collision of obligations and legal uncertainty since adhering to EU law on the issue of liability for host service providers would render the State liable under the Convention, whereas adhering to the test set out in the judgment would not be in conformity with EU law. 2. The Government (a) General remarks 81. The Government made the following remarks in respect of the scope of the case. Firstly, according to the Court ’ s case-law it was for the domestic courts to decide on the domestically applicable law and interpret it. Furthermore, interpretation of EU law was the task of the CJEU. The domestic courts, in reasoned decisions, had found that the Obligations Act, rather than the Directive on electronic commerce or the Information Society Services Act, was applicable. The Grand Chamber should also proceed from this presumption and the applicant company ’ s allegations regarding the applicability of EU law were inadmissible. Secondly, the Government stressed that there existed a number of different types of Internet portals and the issue of their operators ’ liability could not be generalised. The present case was limited to the activities of the Delfi portal at the material time. In that connection the Government pointed out that Delfi had actively invited readers to comment on the articles it had chosen itself; it had published anonymous comments posted on those articles and in the same section; and the comments could be amended or deleted only by Delfi. The applicant company ’ s liability should be assessed in that specific context. 82. The Government emphasised that there was no dispute that the comments in question had been defamatory. 83. The Government noted that, despite the applicant company ’ s allegations to that effect, it had not been forced to disable anonymous comments or to change its business model. On the contrary, Delfi remained the largest Internet portal in Estonia; it was still possible to post anonymous comments on the portal and the number of comments had risen from 190,000 comments a month in 2009 to 300,000 in 2013. According to an article published on 26 September 2013, Delfi deleted 20,000 to 30,000 comments monthly (7 - 10% of all comments). Postimees, the second-largest portal, deleted up to 7% of a total of 120,000 comments. Both portals had five employees who dealt with taking down insulting comments. Since December 2013 Delfi had used a two-tier comments section where registered comments and anonymous comments were shown separately. (b) Lawfulness 84. The Government insisted that the interference with the applicant company ’ s rights had been “ prescribed by law ”. They referred to the domestic legislation and case-law summarised in paragraphs 32 to 36, 38 and 39 of the Chamber judgment, as well as the Court ’ s relevant case-law as summarised in the Chamber judgment. The Government also pointed out that there was no Estonian case-law on the basis of which Delfi – which encouraged the posting of comments on the articles selected and published by it – could have presumed that the owner of an Internet portal as a new media publication was not liable for the damage caused by comments posted on its articles, which formed an integral part of the news and which only Delfi could administer. Further, by the time the domestic judgments had been handed down in Delfi, it was more than clear that Internet media had a wide influence over the public and that, in order to protect the private life of others, liability rules had to apply to new media as well. 85. The Government reiterated that the applicant company ’ s references to EU law and the Information Society Services Act should be disregarded. The Grand Chamber could only assess whether the effects of the interpretation of the Obligations Act were compatible with Article 10 § 2 of the Convention and could not assess the legislation the domestic courts had found not to be applicable. They also pointed out that the domestic courts had paid sufficient attention to the question whether the applicant company might be regarded as a caching or hosting service provider. However, they had found this not to be the case. In particular, in the event of hosting, the service provider merely provided a data storage service, while the stored data and their insertion, amendment, removal and content remained under the control of the service users. In Delfi ’ s comments section, however, commenters lost control of their comments as soon as they had entered them, and they could not change or delete them. Having regard also to the other aspects of the case – Delfi chose the articles and their titles; Delfi invited readers to comment and set the Rules on posting comments (including that the comments had to be related to the article); the amount of advertising revenue Delfi received increased the more comments were posted; Delfi also selectively monitored the comments – the domestic courts had found that Delfi had not acted only as a technical intermediary service provider and could not be classified either as a cache or as a host. The Government also emphasised that the CJEU had never adjudicated on a case similar to the Delfi case. In any event, even if the CJEU ’ s case-law, such as L ’ Oréal SA and Others (cited above), was of relevance, it could be concluded that the role played by Delfi was an active one and it could not be granted the exemptions from liability provided in the Directive on electronic commerce. (c) Legitimate aim 86. The Government submitted that the interference with the applicant company ’ s rights under Article 10 had the legitimate aim of protecting the honour of others. (d) Necessary in a democratic society 87. As regards the question whether the interference was necessary in a democratic society, the Government emphasised at the outset the importance of the balance between Articles 10 and 8 of the Convention. 88. The Government referred extensively to the relevant reasoning of the Chamber judgment. In addition, they emphasised the following. 89. Firstly, as regards the context of the comments, the Government noted that the domestic courts had attached importance to the fact that the selection and publication of the news articles and the publication of readers ’ comments on these articles in the same section had been part of the applicant company ’ s professional activity as a discloser of information. Delfi invited readers to comment on its articles – often giving the articles provocative headlines and showing the number of comments on the main page immediately after the title of an article in bold red, so that commenting on an article would be more enticing – which in turn brought in advertising revenue. 90. Secondly, in respect of the measures applied by the applicant company, the Government stressed the importance of ensuring the protection of third parties in relation to the Internet, which had become an extensive medium available to the majority of the population and used on a daily basis. The Government added that the applicant company ’ s responsibility for the comments had also been obvious as the actual writers of comments could not modify or delete their comments once they were posted on the Delfi news portal – only the applicant company had the technical means to do this. The Government also pointed out that any information communicated via the Internet spread so quickly that measures taken weeks or even days later to protect a person ’ s honour were no longer sufficient because the offensive comments had already reached the general public and done the damage. The Government further argued that the biggest international news portals did not allow anonymous (that is, unregistered) comments and referred to an opinion that there was a trend away from anonymity. At the same time, anonymous comments tended to be more insulting than the comments by persons who had registered, and harsh comments attracted more readers. The Government argued that Delfi had been notorious for exactly this reason. 91. Thirdly, as regards the liability of the actual authors, the Government submitted that in civil proceedings – a remedy which was preferable to criminal remedies in defamation cases – investigative measures such as surveillance procedures were not accessible. In respect of the procedure for “ pre-trial taking of evidence ”, the Government argued that this was not a reasonable alternative in the case of anonymous comments for the following two reasons: (a) the relevant Internet Protocol ( IP) addresses could be not always established, for example if the user data or the comment had been deleted or an anonymous proxy had been used; and (b) even if the computers used for posting the comments could be identified, it could still prove impossible to identify the persons who had posted them, for example in cases where a public computer, a Wi-Fi hotspot, a dynamic IP address or a server in a foreign country had been used, or for other technical reasons. 92. Fourthly, as regards the consequences of the domestic proceedings for the applicant company, the Government noted that Delfi had not needed to change its business model or disallow anonymous comments. In fact, the total number of comments – the majority of which were anonymous – had increased, while Delfi now employed five moderators. The Government also pointed out that the finding of liability was not aimed at obtaining huge or punitive awards of compensation. Indeed, in Delfi ’ s case the compensation it had been obliged to pay for non-pecuniary damage was negligible (EUR 320), and in the subsequent case-law (see paragraph 43 above) the courts had held that finding a violation or deleting a comment could be a sufficient remedy. The Government concluded that the applicant company ’ s civil liability had not had a “ chilling effect ” on the freedom of expression, but was justified and proportionate. 93. Lastly, referring to the legislation and practice of several European countries, the Government contended that there was no European consensus on or trend towards excluding the liability of an Internet portal owner which acted as a content service provider and the discloser of anonymous comments on its own articles. C. The third-party interveners ’ submissions 1. The Helsinki Foundation for Human Rights 94. The Helsinki Foundation for Human Rights in Warsaw emphasised the differences between the Internet and traditional media. It noted that online services like Delfi acted simultaneously in two roles: as content providers with regard to their own news, and as host providers with regard to third-party comments. It submitted that moderation of user-generated content or the power to remove access to it should not be regarded as having effective editorial control. Intermediary service providers should not be treated as traditional media and should not be subject to the same liability regime. 95. The Helsinki Foundation argued that authors should be accountable for their defamatory comments and the State should provide a regulatory framework making it possible to identify and prosecute online offenders. At the same time, it also contended that the possibility of publishing anonymously on the Internet should be regarded as a value. 2. Article 19 96. Article 19 argued that one of the most innovative features of the Internet was the ease with which it allowed any person to express his or her views to the entire world without seeking the prior approval of publishers. Comment platforms enabled and promoted public debate in its purest form and this had very little to do with the provision of news. As a matter of fact and form, comments sections on news websites were better understood as newspapers appropriating the private discussion model that was native to the Internet rather than the other way round. Article 19 argued that making websites responsible for comments made by users would impose an unacceptable burden on websites. 97. Article 19 contended that the Directive on electronic commerce was meant to shield websites from liability for their users ’ comments, regardless of their own content. Article 19 insisted that, while the normal liability rules should continue to apply to online news sites for the articles they published, they should be regarded as hosts – rather than publishers – for the purposes of the comments section on their website. As hosts, online news sites should in principle be immune from liability for third-party content in circumstances where they had not been involved in directly modifying the content in issue. They should not be held liable when they took all reasonable steps to remove content upon being notified, and they should not automatically be held liable simply because they decided not to remove a comment reported to them. 3. Access 98. According to Access, anonymity and pseudonymity supported the fundamental rights of privacy and freedom of expression. A regulatory prohibition on anonymous use of the Internet would constitute an interference with the rights to privacy and freedom of expression protected under Articles 8 and 10 of the Convention, and blanket restrictions on anonymous and pseudonymous expression would impair the very essence of these rights. Access referred to the long-standing case-law of several countries protecting the right to anonymous communication, both on and offline. 99. Furthermore, Access pointed out that services designed to provide enhanced confidentiality and anonymity while using the Internet had become more popular in the wake of revelations of mass surveillance online. It further argued that restricting Internet users to identified expression would harm the Internet economy, and referred to research which had concluded that the most important contributors online were those using pseudonyms. 100. As regards real-name policy, evidence from China showed that such a measure had caused a dramatic drop in the number of comments posted. Experience in South Korea had demonstrated that real-name policy failed to improve meaningfully comments, whereas it was discriminatory against domestic Internet companies, as the users had sought alternative, international platforms that still allowed anonymous and pseudonymous comments. 4. Media Legal Defence Initiative 101. Media Legal Defence Initiative (MLDI) made its submissions on behalf of twenty-eight non-governmental and media organisations and companies. It noted that the vast majority of online media outlets allowed reader comments. Through the comments facility, readers could debate the news amongst themselves as well as with journalists. This transformed the media from a one-way flow of communication into a participatory form of speech which recognised the voice of the reader and allowed different points of view to be aired. 102. MLDI noted that the boundaries between access and content were now increasingly blurred and “ intermediaries ” included enhanced search services, online marketplaces, web 2.0 applications and social networking sites. From the users ’ perspective, they all facilitated access to and use of content and were crucial to the realisation of the right to freedom of expression. 103. MLDI contended that it was the States ’ task to ensure a regulatory framework that protected and promoted freedom of expression whilst also guarding other rights and interests. It provided a detailed overview of the regulatory framework for intermediary liability in the United States of America and in the European Union. It noted that approaches in these jurisdictions were distinct, but nevertheless similar in that it was acknowledged that some level of protection for intermediaries was vital and that there was no requirement that intermediaries should monitor user content. It also noted that in some member States notice-and-take-down procedures had resulted in excessive liability on intermediaries and the taking down of legitimate content. 104. MLDI also elaborated on the emerging good practices in the regulation of user-generated content by online media. It pointed out that the majority of publications in North America and Europe did not screen or monitor comments before they were posted. They did, however, engage in some kind of post-publication moderation. Many online media outlets also ran filtering software and had mechanisms in place to block users who consistently broke the rules. The majority of online media, including leading European news outlets, required user registration but users were not required to disclose their real names. 5. EDiMA, CCIA Europe and EuroISPA 105. The European Digital Media Association (EDiMA), the Computer & Communications Industry Association (CCIA Europe) and EuroISPA, a pan-European association of European Internet Services Providers Associations, made joint submissions as third parties. 106. The third-party interveners argued that there was an established balance struck to date in legislation, international agreements and recommendations according to which, firstly, host service providers were exempt from liability for content in the absence of “ actual knowledge ” and, secondly, States were prohibited from requiring host providers to carry out general monitoring of content. 107. They noted that, while some information available online came from traditional publishing sources such as newspapers, and was rightly regulated by the law applicable to publishers, a large amount of online content came instead from individual speakers who could state their views unmediated by traditional editorial institutions. Comment facilities allowed for a right of reply and were thus fundamentally different from traditional publications, where no such right existed. 108. The third-party interveners argued that the technology and operating processes for an online news discussion forum like Delfi were technologically indistinguishable from hosting services such as social media/networking platforms, blogs/microblogs and others. Content composed and uploaded by users was automatically made publicly visible without human intervention. For many hosts considerations of scale made proactive human review of all user content effectively impossible. For small websites and start-ups, content control was likely to be particularly challenging and could be so costly as to be prohibitive. 109. The third-party interveners argued that established law in the European Union and other countries envisaged the notice-and-take-down system as a legal and practical framework for Internet content hosting. This balance of responsibilities between users and hosts allowed platforms to identify and remove defamatory or other unlawful speech, whilst at the same time enabling robust discussion on controversial topics of public debate; it made the operation of speech-hosting platforms practicable on a large scale. D. The Court ’ s assessment 1. Preliminary remarks and the scope of the Court ’ s assessment 110. The Court notes at the outset that user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression. That is undisputed and has been recognised by the Court on previous occasions (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012, and Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom, nos. 3002/03 and 23676/03, § 27, ECHR 2009 ). However, alongside these benefits, certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before, worldwide, in a matter of seconds, and sometimes remain persistently available online. These two conflicting realities lie at the heart of this case. Bearing in mind the need to protect the values underlying the Convention, and considering that the rights under Articles 10 and 8 of the Convention deserve equal respect, a balance must be struck that retains the essence of both rights. Thus, while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that the possibility of imposing liability for defamatory or other types of unlawful speech must, in principle, be retained, constituting an effective remedy for violations of personality rights. 111. On this basis, and in particular considering that this is the first case in which the Court has been called upon to examine a complaint of this type in an evolving field of technological innovation, the Court considers it necessary to delineate the scope of its inquiry in the light of the facts of the present case. 112. Firstly, the Court observes that the Supreme Court recognised (see paragraph 14 of its judgment of 10 June 2009, set out in paragraph 31 above) that “ [p] ublishing of news and comments on an Internet portal is also a journalistic activity. At the same time, because of the nature of Internet media, it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication. While the publisher [of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the author of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator are publishers/disclosers as entrepreneurs. ” 113. The Court sees no reason to call into question the above distinction made by the Supreme Court. On the contrary, the starting-point of the Supreme Court ’ s reflections, that is, the recognition of differences between a portal operator and a traditional publisher, is in line with the international instruments in this field, which manifest a certain development in favour of distinguishing between the legal principles regulating the activities of the traditional print and audio - visual media, on the one hand and Internet-based media operations, on the other. In the recent Recommendation of the Committee of Ministers to the member States of the Council of Europe on a new notion of media, this is termed a “ differentiated and graduated approach [that] requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe ” (see paragraph 7 of the Appendix to Recommendation CM/Rec(2011)7, quoted in paragraph 46 above). Therefore, the Court considers that because of the particular nature of the Internet, the “ duties and responsibilities ” that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher as regards third-party content. 114. Secondly, the Court observes that the Supreme Court of Estonia found that the “ legal assessment by the courts of the twenty comments of a derogatory nature [ was ] substantiated. The courts [had] correctly found that those comments [were] defamatory since they [were] of a vulgar nature, degrade[d] human dignity and contain[ ed ] threats ” (see paragraph 15 of the judgment, set out in paragraph 31 above). Further, in paragraph 16 of its judgment, the Supreme Court reiterated that the comments degraded “ human dignity ” and were “ clearly unlawful ”. The Court notes that this characterisation and analysis of the unlawful nature of the comments in question (see paragraph 18 above) is obviously based on the fact that the majority of the comments are, viewed on their face, tantamount to an incitement to hatred or to violence against L. 115. Consequently, the Court considers that the case concerns the “ duties and responsibilities ” of Internet news portals, under Article 10 § 2 of the Convention, when they provide for economic purposes a platform for user-generated comments on previously published content and some users – whether identified or anonymous – engage in clearly unlawful speech, which infringes the personality rights of others and amounts to hate speech and incitement to violence against them. The Court emphasises that the present case relates to a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them. 116. Accordingly, the case does not concern other fora on the Internet where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topic without the discussion being channelled by any input from the forum ’ s manager; or a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or blog as a hobby. 117. Furthermore, the Court notes that the applicant company ’ s news portal was one of the biggest Internet media publications in the country; it had a wide readership and there was a known public concern regarding the controversial nature of the comments it attracted (see paragraph 15 above). Moreover, as outlined above, the impugned comments in the present case, as assessed by the Supreme Court, mainly constituted hate speech and speech that directly advocated acts of violence. Thus, the establishment of their unlawful nature did not require any linguistic or legal analysis since the remarks were on their face manifestly unlawful. It is against this background that the Court will proceed to examine the applicant company ’ s complaint. 2. Existence of an interference 118. The Court notes that it was not in dispute between the parties that the applicant company ’ s freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts ’ decisions. The Court sees no reason to hold otherwise. 119. Such an interference with the applicant company ’ s right to freedom of expression must be “ prescribed by law ”, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be “ necessary in a democratic society ”. 3. Lawfulness 120. The Court reiterates that the expression “ prescribed by law ” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, § 52, ECHR 2001 ‑ VI; Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Gawęda v. Poland, no. 26229/95, § 39, ECHR 2002-II; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A; and Kopp v. Switzerland, 25 March 1998, § 59, Reports of Judgments and Decisions 1998-II). 121. One of the requirements flowing from the expression “ prescribed by law ” is foreseeability. Thus, a norm cannot be regarded as a “ law ” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007 ‑ IV, and Centro Europa 7 S.r.l. and Di Stefano, cited above, § 141 ). 122. The level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed ( ibid., § 142). The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky-Laurens and July, cited above, § 41, with further references to Cantoni v. France, 15 November 1996, § 35, Reports 1996 ‑ V, and Chauvy and Others v. France, no. 64915/01, §§ 43-45, ECHR 2004 ‑ VI). 123. In the present case the parties ’ opinions differed as to whether the interference with the applicant company ’ s freedom of expression was “ prescribed by law ”. The applicant company argued that there was no domestic law according to which an intermediary was to be taken as a professional publisher of comments posted on its website by third parties regardless of whether it was aware of their specific content. On the contrary, the applicant company relied on the domestic and European legislation on Internet service providers and argued that it expressly prohibited the imposition of liability on service providers for third-party content. 124. The Government referred to the relevant provisions of the civil law and domestic case-law to the effect that media publishers were liable for their publications along with the authors. They added that there was no case-law on the basis of which the applicant company could have presumed that the owner of an Internet news portal as a new media publication was not liable for the comments posted on its articles. In their view the Court should proceed from the facts as established and the law as applied and interpreted by the domestic courts and not take account of the applicant company ’ s references to EU law. In any event, the EU law referred to by the applicant company actually supported the domestic courts ’ interpretations and conclusions. 125. The Court observes that the difference in the parties ’ opinions as regards the law to be applied stems from their diverging views on the issue of how the applicant company is to be classified. According to the applicant company, it should be classified as an intermediary as regards the third-party comments, whereas the Government argued that the applicant company was to be seen as a media publisher, including with regard to such comments. 126. The Court observes (see paragraphs 112 - 13 above) that the Supreme Court recognised the differences between the roles of a publisher of printed media, on the one hand, and an Internet portal operator engaged in media publications for an economic purpose, on the other. However, the Supreme Court found that because of their “ economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator [were] publishers/disclosers ” for the purposes of section 1047 of the Obligations Act (see paragraph 14 of the judgment, set out in paragraph 31 above). 127. The Court considers that, in substance, the applicant company argues that the domestic courts erred in applying the general provisions of the Obligations Act to the facts of the case as they should have relied upon the domestic and European legislation on Internet service providers. Like the Chamber, the Grand Chamber reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among others, Centro Europa 7 S.r.l. and Di Stefano, cited above, § 140, and Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999 ‑ III ). The Court also reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004 ‑ I). Thus, the Court confines itself to examining whether the Supreme Court ’ s application of the general provisions of the Obligations Act to the applicant company ’ s situation was foreseeable for the purposes of Article 10 § 2 of the Convention. 128. Pursuant to the relevant provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act (see paragraphs 33 ‑ 38 above), as interpreted and applied by the domestic courts, the applicant company was considered a publisher and deemed liable for the publication of the clearly unlawful comments. The domestic courts chose to apply these norms, having found that the special regulation contained in the Information Society Services Act transposing the Directive on electronic commerce into Estonian law did not apply to the present case since the latter related to activities of a merely technical, automatic and passive nature, unlike the applicant company ’ s activities, and that the objective pursued by the applicant company was not merely the provision of an intermediary service (see paragraph 13 of the Supreme Court ’ s judgment, set out in paragraph 31 above). In this particular context the Court takes into account the fact that some countries have recognised that the importance and the complexity of the subject matter, involving the need to ensure proper balancing of different interests and fundamental rights, call for the enactment of specific regulations for situations such as that pertaining in the present case (see paragraph 58 above). Such action is in line with the “ differentiated and graduated approach ” to the regulation of new media recommended by the Council of Europe (see paragraph 46 above) and has found support in the Court ’ s case-law (see, mutatis mutandis, Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, §§ 63-64, ECHR 2011 ). However, although various legislative approaches are possible in legislation to take account of the nature of new media, the Court is satisfied on the facts of this case that the provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act, along with the relevant case-law, made it foreseeable that a media publisher running an Internet news portal for an economic purpose could, in principle, be held liable under domestic law for the uploading of clearly unlawful comments, of the type in issue in the present case, on its news portal. 129. The Court accordingly finds that, as a professional publisher, the applicant company should have been familiar with the legislation and case-law, and could also have sought legal advice. The Court observes in this context that the Delfi news portal is one of the largest in Estonia. Public concern had already been expressed before the publication of the comments in the present case and the Minister of Justice had noted that victims of insults could bring a suit against Delfi and claim damages (see paragraph 15 above). Thus, the Court considers that the applicant company was in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail. It therefore concludes that the interference in issue was “ prescribed by law ” within the meaning of the second paragraph of Article 10 of the Convention. 4. Legitimate aim 130. The parties before the Grand Chamber did not dispute that the restriction of the applicant company ’ s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. The Court sees no reason to hold otherwise. 5. Necessary in a democratic society (a) General principles 131. The fundamental principles concerning the question whether an interference with freedom of expression is “ necessary in a democratic society ” are well established in the Court ’ s case-law (see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports 1998 ‑ VI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012; and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013) and have been summarised as follows. “ ( i ) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ... ” 132. Furthermore, the Court has emphasised the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997 ‑ I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999 ‑ III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet Tromsø and Stensaas, cited above, § 59). The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments (see, for example, Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998 ‑ IV; and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001 ‑ I). 133. Moreover, the Court has previously held that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general ( see Ahmet Yıldırım, cited above, § 48, and Times Newspapers Ltd, cited above, § 27 ). At the same time, the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63). 134. In considering the “ duties and responsibilities ” of a journalist, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audio - visual media often have a much more immediate and powerful effect than the print media (see Purcell and Others v. Ireland, no. 15404/89, Commission decision of 16 April 1991, Decisions and Reports 70, p. 262). The methods of objective and balanced reporting may vary considerably, depending among other things on the media in question (see Jersild, cited above, § 31 ). 135. The Court has held that the “ punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so ” (see Jersild, cited above, § 35; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III; and, mutatis mutandis, Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31, 14 December 2006, and Print Zeitungsverlag GmbH v. Austria, no. 26547/07, § 39, 10 October 2013 ). 136. Moreover, the Court has held that speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10 by virtue of Article 17 of the Convention. The examples of such speech examined by the Court have included statements denying the Holocaust, justifying a pro-Nazi policy, linking all Muslims with a grave act of terrorism, or portraying the Jews as the source of evil in Russia (see Lehideux and Isorni v. France, 23 September 1998, §§ 47 and 53, Reports 1998 ‑ VII; Garaudy v. France (dec.), no. 65831/01, ECHR 2003 ‑ IX; Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004 ‑ XI; Witzsch v. Germany (dec.), no. 7485/03, 13 December 2005; and Pavel Ivanov v. Russia (dec.), no. 35222/04, 20 February 2007). 137. The Court further reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, § 70; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009, and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012). 138. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “ protection of the reputation or rights of others ”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10, and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG, cited above, § 84 ). 139. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who was the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to Hachette Filipacchi Associés ( ICI PARIS ), no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover, cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011 ). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013 ). (b) Application of the above principles to the present case (i) Elements in the assessment of proportionality 140. The Court notes that it is not disputed that the comments posted by readers in reaction to the news article published in the comments section on the applicant company ’ s Internet news portal were of a clearly unlawful nature. Indeed, the applicant company removed the comments once it was notified by the injured party, and described them as “ infringing ” and “ illicit ” before the Chamber (see paragraph 84 of the Chamber judgment). Moreover, the Court is of the view that the majority of the impugned comments amounted to hate speech or incitements to violence and as such did not enjoy the protection of Article 10 (see paragraph 136 above). Thus, the freedom of expression of the authors of the comments is not in issue in the present case. Rather, the question before the Court is whether the domestic courts ’ decisions, holding the applicant company liable for these comments posted by third parties, were in breach of its freedom to impart information as guaranteed by Article 10 of the Convention. 141. The Court observes that, although the applicant company immediately removed the comments in question from its website upon notification by L. ’ s lawyers (see paragraphs 18 - 19 above), the Supreme Court held the applicant company liable on the basis of the Obligations Act as it should have prevented the publication of comments with clearly unlawful contents. It then referred to section 1047(3) of the Obligations Act, according to which disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the “ gravity of the potential violation ”. The Supreme Court thus held that, after the disclosure, the applicant company had failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. The inactivity of the applicant company was thus deemed unlawful as it had not “ proved the absence of culpability ” under section 1050(1) of the Obligations Act (see paragraph 16 of the Supreme Court judgment, set out in paragraph 31 above). 142. In the light of the Supreme Court ’ s reasoning, the Court must, according to its consistent case-law, examine whether the domestic courts ’ finding of liability on the part of the applicant company was based on relevant and sufficient grounds in the particular circumstances of the case (see paragraph 131 above). The Court observes that, in order to resolve the question whether the domestic courts ’ decisions holding the applicant company liable for the comments posted by third parties were in breach of its freedom of expression, the Chamber identified the following aspects as relevant for its analysis: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the applicant company ’ s liability, and the consequences of the domestic proceedings for the applicant company (see paragraphs 85 et seq. of the Chamber judgment). 143. The Court agrees that these aspects are relevant for the concrete assessment of the proportionality of the interference in issue within the scope of the Court ’ s examination of the present case (see paragraphs 112 - 17 above ). (ii) Context of the comments 144. As regards the context of the comments, the Court accepts that the news article about the ferry company, published on the Delfi news portal, was a balanced one, contained no offensive language and gave rise to no arguments regarding unlawful statements in the domestic proceedings. The Court is aware that even such a balanced article on a seemingly neutral topic may provoke fierce discussions on the Internet. Furthermore, it attaches particular weight, in this context, to the nature of the Delfi news portal. It reiterates that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. The Court observes that the Supreme Court explicitly referred to the fact that the applicant company had integrated the comments section into its news portal, inviting visitors to the website to complement the news with their own judgments and opinions (comments). According to the findings of the Supreme Court, in the comments section, the applicant company actively called for comments on the news items appearing on the portal. The number of visits to the applicant company ’ s portal depended on the number of comments; the revenue earned from advertisements published on the portal, in turn, depended on the number of visits. Thus, the Supreme Court concluded that the applicant company had an economic interest in the posting of comments. In the view of the Supreme Court, the fact that the applicant company was not the author of the comments did not mean that it had no control over the comments section (see paragraph 13 of the judgment, set out in paragraph 31 above). 145. The Court also notes in this regard that the Rules on posting comments on the Delfi website stated that the applicant company prohibited the posting of comments that were without substance and/or off topic, were contrary to good practice, contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities. Such comments could be removed and their authors ’ ability to post comments could be restricted. Furthermore, the actual authors of the comments could not modify or delete their comments once they were posted on the applicant company ’ s news portal – only the applicant company had the technical means to do this. In the light of the above and the Supreme Court ’ s reasoning, the Court agrees with the Chamber ’ s finding that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal. 146. In sum, the Court considers that it was sufficiently established by the Supreme Court that the applicant company ’ s involvement in making public the comments on its news articles on the Delfi news portal went beyond that of a passive, purely technical service provider. The Court therefore finds that the Supreme Court based its reasoning on this issue on grounds that were relevant for the purposes of Article 10 of the Convention. (iii) Liability of the authors of the comments 147. In connection with the question whether the liability of the actual authors of the comments could serve as a sensible alternative to the liability of the Internet news portal in a case like the present one, the Court is mindful of the interest of Internet users in not disclosing their identity. Anonymity has long been a means of avoiding reprisals or unwanted attention. As such, it is capable of promoting the free flow of ideas and information in an important manner, including, notably, on the Internet. At the same time, the Court does not lose sight of the ease, scope and speed of the dissemination of information on the Internet, and the persistence of the information once disclosed, which may considerably aggravate the effects of unlawful speech on the Internet compared to traditional media. It also refers in this connection to a recent judgment of the Court of Justice of the European Union in Google Spain SL and Google Inc. (cited above), in which that court, albeit in a different context, dealt with the problem of the availability on the Internet of information seriously interfering with a person ’ s private life over an extended period of time, and found that the individual ’ s fundamental rights, as a rule, overrode the economic interests of the operator of a search engine and the interests of other Internet users (see paragraph 56 above). 148. The Court observes that different degrees of anonymity are possible on the Internet. An Internet user may be anonymous to the wider public while being identifiable by a service provider through an account or contact data that may be either unverified or subject to some kind of verification – ranging from limited verification (for example, through activation of an account via an e-mail address or a social network account) to secure authentication, be it by the use of national electronic identity cards or online banking authentication data allowing rather more secure identification of the user. A service provider may also allow an extensive degree of anonymity for its users, in which case the users are not required to identify themselves at all and they may only be traceable – to a limited extent – through the information retained by Internet access providers. The release of such information would usually require an injunction by the investigative or judicial authorities and would be subject to restrictive conditions. It may nevertheless be required in some cases in order to identify and prosecute perpetrators. 149. Thus, in the judgment in K.U. v. Finland, concerning an offence of “ malicious misrepresentation ” of a sexual nature against a minor, the Court found that “ [a] lthough freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others ” (see K.U. v. Finland, no. 2872/02, § 49, ECHR 2008). The Court in that case rejected the Government ’ s argument that the applicant had had the possibility of obtaining damages from the service provider, finding that this was not sufficient in the circumstances of the case. It held that there had to be a remedy enabling the actual offender to be identified and brought to justice, whereas at the relevant time the regulatory framework of the respondent State had not provided for the possibility of ordering the Internet service provider to divulge the information required for that purpose (ibid., §§ 47 and 49). Although K.U. v. Finland concerned a breach classified as a criminal offence under the domestic law and involved a more sweeping intrusion into the victim ’ s private life than the present case, it is evident from the Court ’ s reasoning that anonymity on the Internet, while an important factor, must be balanced against other rights and interests. 150. As regards the establishment of the identity of the authors of the comments in civil proceedings, the Court notes that the parties ’ positions differed as to its feasibility. On the basis of the information provided by the parties, the Court observes that the Estonian courts, in the “ pre-trial taking of evidence ” procedure under Articles 244 et seq. of the Code of Civil Procedure (see paragraph 40 above), have granted requests by defamed persons for the disclosure by online newspapers or news portals of the IP addresses of authors who had posted allegedly defamatory comments and for the disclosure by Internet access providers of the names and addresses of the subscribers to whom the IP addresses in question had been assigned. The examples provided by the Government show mixed results: in some cases it had proved possible to establish the computer from which the comments had been made, while in other cases, for various technical reasons, this had proved impossible. 151. According to the Supreme Court ’ s judgment in the present case, the injured person had the choice of bringing a claim against the applicant company or the authors of the comments. The Court considers that the uncertain effectiveness of measures allowing the identity of the authors of the comments to be established, coupled with the lack of instruments put in place by the applicant company for the same purpose with a view to making it possible for a victim of hate speech to bring a claim effectively against the authors of the comments, are factors that support a finding that the Supreme Court based its judgment on relevant and sufficient grounds. The Court also refers, in this context, to the judgment in Krone Verlag GmbH & Co. KG v. Austria (no. 4) ( no. 72331/01, § 32, 9 November 2006) in which it found that shifting the risk of the defamed person obtaining redress in defamation proceedings to the media company, which was usually in a better financial position than the defamer, was not as such a disproportionate interference with the media company ’ s right to freedom of expression. (iv) Measures taken by the applicant company 152. The Court notes that the applicant company highlighted the number of comments on each article on its website, and therefore the articles with the most lively exchanges must have been easily identifiable for the editors of the news portal. The article in issue in the present case attracted 185 comments, apparently well above average. The comments in question were removed by the applicant company some six weeks after they were uploaded on the website, upon notification by the injured person ’ s lawyers to the applicant company (see paragraphs 17 - 19 above). 153. The Court observes that the Supreme Court stated in its judgment that “ [o]n account of the obligation arising from law to avoid causing harm, the [applicant company] should have prevented the publication of comments with clearly unlawful contents ”. However, it also held that “ [a]fter the disclosure, the [applicant company had] failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative ” (see paragraph 16 of the judgment, set out in paragraph 31 above). Therefore, the Supreme Court did not explicitly determine whether the applicant company was under an obligation to prevent the uploading of the comments to the website or whether it would have sufficed under domestic law for the applicant company to have removed the offending comments without delay after publication to escape liability under the Obligations Act. The Court considers that, when assessing the grounds upon which the Supreme Court relied in its judgment entailing an interference with the applicant company ’ s Convention rights, there is nothing to suggest that the national court intended to restrict its rights to a greater extent than that required to achieve the aim pursued. On this basis, and having regard to the freedom to impart information as enshrined in Article 10, the Court will thus proceed on the assumption that the Supreme Court ’ s judgment must be understood to mean that had the applicant company removed the comments without delay after publication, this would have sufficed for it to escape liability under domestic law. Consequently, and taking account of the above findings (see paragraph 145 ) to the effect that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal, the Court does not consider that the imposition on the applicant company of an obligation to remove from its website, without delay after publication, comments that amounted to hate speech and incitements to violence, and were thus clearly unlawful on their face, amounted, in principle, to a disproportionate interference with its freedom of expression. 154. The pertinent issue in the present case is whether the national court ’ s findings that liability was justified, as the applicant company had not removed the comments without delay after publication, were based on relevant and sufficient grounds. With this in mind, account must first be taken of whether the applicant company had put in place mechanisms that were capable of filtering comments amounting to hate speech or speech entailing an incitement to violence. 155. The Court notes that the applicant company took certain measures in this regard. There was a disclaimer on the Delfi news portal stating that the writers of the comments – and not the applicant company – were accountable for them, and that the posting of comments that were contrary to good practice or contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities, was prohibited. Furthermore, the portal had an automatic system of deletion of comments based on stems of certain vulgar words and it had a notice-and-take-down system in place, whereby anyone could notify it of an inappropriate comment by simply clicking on a button designated for that purpose to bring it to the attention of the portal administrators. In addition, on some occasions the administrators removed inappropriate comments on their own initiative. 156. Thus, the Court notes that the applicant company cannot be said to have wholly neglected its duty to avoid causing harm to third parties. Nevertheless, and more importantly, the automatic word-based filter used by the applicant company failed to filter out odious hate speech and speech inciting violence posted by readers and thus limited its ability to expeditiously remove the offending comments. The Court reiterates that the majority of the words and expressions in question did not include sophisticated metaphors or contain hidden meanings or subtle threats. They were manifest expressions of hatred and blatant threats to the physical integrity of L. Thus, even if the automatic word-based filter may have been useful in some instances, the facts of the present case demonstrate that it was insufficient for detecting comments whose content did not constitute protected speech under Article 10 of the Convention (see paragraph 136 above). The Court notes that as a consequence of this failure of the filtering mechanism these clearly unlawful comments remained online for six weeks (see paragraphs 18 -19 above). 157. The Court observes in this connection that on some occasions the portal administrators did remove inappropriate comments on their own initiative and that, apparently some time after the events of the present case, the applicant company set up a dedicated team of moderators. Having regard to the fact that there are ample opportunities for anyone to make his or her voice heard on the Internet, the Court considers that a large news portal ’ s obligation to take effective measures to limit the dissemination of hate speech and speech inciting violence – the issue in the present case – can by no means be equated to “ private censorship ”. While acknowledging the “ important role ” played by the Internet “ in enhancing the public ’ s access to news and facilitating the dissemination of information in general ” ( see Ahmet Yıldırım, cited above, § 48, and Times Newspapers Ltd, cited above, § 27 ), the Court reiterates that it is also mindful of the risk of harm posed by content and communications on the Internet (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63; see also Mosley, cited above, § 130). 158. Moreover, depending on the circumstances, there may be no identifiable individual victim, for example in some cases of hate speech directed against a group of persons or speech directly inciting violence of the type manifested in several of the comments in the present case. In cases where an individual victim exists, he or she may be prevented from notifying an Internet service provider of the alleged violation of his or her rights. The Court attaches weight to the consideration that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments. 159. Lastly, the Court observes that the applicant company has argued (see paragraph 78 above) that the Court should have due regard to the notice-and-take-down system that it had introduced. If accompanied by effective procedures allowing for rapid response, this system can in the Court ’ s view function in many cases as an appropriate tool for balancing the rights and interests of all those involved. However, in cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, as understood in the Court ’ s case-law (see paragraph 136 above), the Court considers, as stated above (see paragraph 153 ), that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties. (v) Consequences for the applicant company 160. Finally, turning to the question of consequences of the domestic proceedings for the applicant company, the Court notes that it was obliged to pay the injured person the equivalent of EUR 320 in compensation for non-pecuniary damage. It agrees with the finding of the Chamber that this sum, also taking into account the fact that the applicant company was a professional operator of one of the largest Internet news portals in Estonia, can by no means be considered disproportionate to the breach established by the domestic courts (see paragraph 93 of the Chamber judgment). The Court notes in this connection that it has also had regard to the post- Delfi domestic case-law on the liability of the operators of Internet news portals (see paragraph 43 above). It observes that in these cases the lower courts have followed the Supreme Court ’ s judgment in Delfi but no awards have been made for non-pecuniary damage. In other words, the tangible result for the operators in post- Delfi cases has been that they have taken down the offending comments but have not been ordered to pay compensation for non-pecuniary damage. 161. The Court also observes that it does not appear that the applicant company had to change its business model as a result of the domestic proceedings. According to the information available, the Delfi news portal has continued to be one of Estonia ’ s largest Internet publications and by far the most popular for posting comments, the number of which has continued to increase. Anonymous comments – now existing alongside the possibility of posting registered comments, which are displayed to readers first – are still predominant and the applicant company has set up a team of moderators carrying out follow-up moderation of comments posted on the portal (see paragraphs 32 and 83 above). In these circumstances, the Court cannot conclude that the interference with the applicant company ’ s freedom of expression was disproportionate on that account either. (vi) Conclusion 162. Based on the concrete assessment of the above aspects, taking into account the reasoning of the Supreme Court in the present case, in particular the extreme nature of the comments in question, the fact that the comments were posted in reaction to an article published by the applicant company on its professionally managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to remove without delay after publication comments amounting to hate speech and speech inciting violence and to ensure a realistic prospect of the authors of such comments being held liable, and the moderate sanction imposed on the applicant company, the Court finds that the domestic courts ’ imposition of liability on the applicant company was based on relevant and sufficient grounds, having regard to the margin of appreciation afforded to the respondent State. Therefore, the measure did not constitute a disproportionate restriction on the applicant company ’ s right to freedom of expression. Accordingly, there has been no violation of Article 10 of the Convention. | EU Directive 2000/31/EC |
888 | Internet | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Press Complaints Commission 29. The Press Complaints Commission (“PCC”) is an independent body set up to examine complaints about the editorial content of newspapers and magazines, and their websites, in the United Kingdom. If a complaint is upheld, a public ruling will be issued by the PCC and the newspaper or magazine concerned is obliged to publish the critical ruling in full and with due prominence. 30. On 18 November 2008 the PCC upheld a complaint by Mr P. Burrell that the News of the World had published an article about him which was inaccurate, in breach of clause 1 of the Editors ’ Code of Practice (see further paragraph 31 below). The newspaper had failed to approach him for comments prior to publication. In its adjudication, the PCC noted: “ The [PCC] has previously said that failure to contact the subjects of articles before publication – while not obligatory – may constitute a lack of care under Clause 1 in some circumstances. It has never said that people have no right ever to comment on a story, or to be offered a right of reply, if they have misled people in another context. The [PCC] was also aware of the newspaper ’ s concerns about an undeserved injunction being granted. However, it did not consider that this meant that the requirements of the Code did not apply. Given the nature of the story, and how the newspaper wished to present it, the inclusion of the complainant ’ s comments was necessary to avoid breaching the Code. ... It has never been an absolute requirement for newspapers to contact those who are about to feature in articles. This would be impractical for a number of reasons: often there will be no dispute about the facts, or the information will be innocuous; the volume of people mentioned in straightforward stories would make it impossible; and legitimate investigations might on some occasions be compromised by such a rule. However, in this case the newspaper made the wrong decision and the complaint was upheld .” B. Codes of Practice 1. The Editors ’ Code of Practice 31. The PCC is responsible for ratifying and enforcing the Editors ’ Code of Practice (“the Editors ’ Code”). The Editors ’ Code is regularly reviewed and amended as required. Clause 1 of the Editors ’ Code provides, inter alia, that the press must take care not to publish inaccurate, misleading or distorted information, including pictures. 32. Clause 3 of the Editors ’ Code deals with privacy. At the relevant time, it provided as follows: “3. *Privacy i ) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify intrusions into any individual ’ s private life without consent. ii) It is unacceptable to photograph individuals in a private place without their consent. Note - Private places are public or private property where there is a reasonable expectation of privacy.” 33. Clause 10 of the Editors ’ Code sets out provisions on clandestine recordings: “10 *Clandestine devices and subterfuge i ) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent. ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.” 34. At the relevant time, the “public interest” was explained in the Editors ’ Code as follows: “ There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest. 1. The public interest includes, but is not confined to: i ) Detecting or exposing crime or serious impropriety. ii) Protecting public health and safety. iii) Preventing the public from being misled by an action or statement of an individual or organisation. 2. There is a public interest in freedom of expression itself. 3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served. 4. The PCC will consider the extent to which material is already in the public domain, or will become so. ...” 35. Paragraph 3 was amended in October 2009 to provide: “ Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest. ” 36. The Editors ’ Codebook accompanies the Editors ’ Code and is intended to provide guidance as to compliance with the Code ’ s provisions. It underwent major revision in January 2011, providing updates on prior notification and “ public interest ”. As regards prior notification, it now explains: “ There is wide agreement that prior notification of the subjects of stories ahead of publication, while often desirable, could not – and should not – be obligatory. It would be impractical, often unnecessary, impossible to achieve, and could jeopardise legitimate investigations. Yet, at the same time, a failure to include relevant sides of the story can lead to inaccuracy and breach the Code. The PCC has set out guidance on how to square this circle: 1. If there is no doubt about the story ’ s truth, it is unlikely that a failure to approach those involved for comment prior to publication will lead to a breach of Clause 1 of the Code [on accuracy]; 2. Where information has come from a source (especially an anonymous one), it may be prudent to seek the ‘ other side of the story ’ before the article appears; ... ” 37. As to the “public interest” test, the Codebook notes: “ In judging publications ’ claims that otherwise prohibited information or methods were justifiable in the public interest, both the Code and the PCC set high thresholds. The burden is on the editor to demonstrate fully how the public interest was served. ” 38. It provides details of previous rulings of the PCC on the question of the “public interest” and identifies key questions as: “ Was it reasonable to believe that publication or journalistic activity would have served the public interest? The PCC would require a full explanation showing that the grounds were genuine and sound in the circumstances. If clandestine methods, subterfuge, harassment or payments to criminals or witnesses are involved, could the information have been obtained by other means? Is the information in the public domain, or likely to become so? If children are involved, is the public interest in publication exceptional? ” 2. The Ofcom Broadcasting Code 39. Broadcasters are subject to the Ofcom Broadcasting Code (“the Ofcom Code”). Section 7 of the Ofcom Code deals with fairness and provides, inter alia : “7.9 Before broadcasting a factual programme, including programmes examining past events, broadcasters should take reasonable care to satisfy themselves that: ... 40. Principle 8 of the Ofcom Code addresses the need to avoid any unwarranted infringement of privacy in programmes and in connection with obtaining material included in programmes. C. Remedies for publication of private information 41. Under English law, a number of remedies are available in cases of misuse of private information. An injunction can be sought to restrain publication of the private material. Damages are also available to compensate for the injury caused by any intrusive publication, including aggravated damages where additional features of the intrusion or the defendant ’ s post-publication conduct makes the original injury worse. An alternative to damages is an account of the profits made by the defendant. The court can also order delivery-up of the offending material. 42. Further protection is offered by the Data Protection Act 1998, which makes provision for the regulation of the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information. It sets out in a schedule eight data protection principles which must be observed by data controllers in the United Kingdom. These principles include the principles that personal data shall be processed fairly and lawfully; that personal data shall be obtained only for one or more specified and lawful purposes; that personal data shall be adequate, relevant and not excessive in relation to the purpose for which they are processed; that personal data shall be accurate and up to date; and that personal data shall be processed in accordance with the rights of data subjects under the Act. Further requirements are stipulated in respect of “sensitive personal data”, which includes information as to a person ’ s sexual life. 43. However, section 32(1) of the Act provides a “public interest” exemption from the data protection principles where information is processed for journalism purposes : “ Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if— (a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material, (b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and (c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes. ” 44. Section 3 defines “the special purposes” as including the “purposes of journalism”. Section 32(2) provides that the exemption relates to the data protection principles, except the seventh data protection principle which sets out the need for appropriate technical and organisational measures to be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Section 32(3) provides that compliance with any code of practice is relevant to the assessment of whether there was a reasonable belief that publication would be in the public interest. 45. Section 13 of the Act entitles a data subject to apply for compensation where there has been a contravention of the requirements of the Act and section 14 allows him to apply for rectification, erasure or destruction of personal data. D. Interim injunctions 46. The position as regards interim injunctions under English law was set out in the case of American Cyanamid Co. v. Ethicon Ltd ([1975] Appeal Cases 396). In particular, a claimant seeking an interim injunction was required to show that he had a “seriously arguable case” to be tried. Once this had been shown, it was for the courts to decide where the balance of convenience lay between the case for granting the injunction and that of leaving the applicant to his remedy of damages. If there were doubts as to the adequacy of a remedy in damages, the preservation of the status quo often prevailed, with the result that an interim injunction would be granted. 47. The position in cases engaging the right to freedom of expression was subsequently amended with the entry into force of the Human Rights Act 1998. Section 12 of the Act provides: “ (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (2) If the person against whom the application for relief is made ( ‘ the respondent ’ ) is neither present nor represented, no such relief is to be granted unless the court is satisfied— (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to— (a) the extent to which— ( i ) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code. ” 48. The effect of the Human Rights Act, in particular section 12(3), was considered by the House of Lords in Cream Holdings Limited and others v. Banerjee and others [2004] UKHL 44. Lord Nicholls of Birkenhead observed that: “ 15. When the Human Rights Bill was under consideration by Parliament concern was expressed at the adverse impact the Bill might have on the freedom of the press. Article 8 of the European Convention, guaranteeing the right to respect for private life, was among the Convention rights to which the legislation would give effect. The concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8. Section 12(3) was enacted to allay these fears. Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a ‘ serious question to be tried ’ or a ‘ real prospect ’ of success at the trial.” 49. He concluded that: “ 22. Section 12(3) makes the likelihood of success at the trial an essential element in the court ’ s consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant ’ s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘ sufficiently favourable ’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ( ‘ more likely than not ’ ) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.” 50. Subsequently, in Douglas & Ors v Hello! Ltd & Ors ([2005] EWCA Civ 595), the Court of Appeal noted: “ 258. Of course, as recently emphasised by the House of Lords in Cream Holdings Limited v Banerjee [2004] 3 WLR 918, a claimant seeking an interlocutory injunction restraining publication has to satisfy a particularly high threshold test, in light of section 12(3) of the Human Rights Act 1998. ” E. The House of Commons Culture, Media and Sport Committee 51. On 9 February 2010 the House of Commons Culture, Media and Sport Committee (“the Select Committee”) published a report on Press standards, privacy and libel (2 nd Report of Session 2009-10, HC 362-I). The report was prepared following receipt of written submissions and the hearing of oral evidence from a number of stakeholders, including the applicant and the editor of the News of the World. A chapter of the report was dedicated to examining privacy and breach of confidence. As regards the evidence received on the need for a rule of pre-notification, the report noted: “82. In his own case, Mr Mosley stated that he would certainly have sought an injunction if he had had advance notification of the News of the World ’ s intention to publish. Mr Myler [the editor of the News of the World ] told us that he and his colleagues at the newspaper were conscious of this: ‘ we knew that probably Mr Mosley would get an injunction, and I felt very strongly that this was a story that actually should not be stopped because of an injunction ’ .” 52. According to the evidence received by the Select Committee, journalists contacted the subjects of their articles prior to publication in the great majority of cases. However, there was some evidence before the Select Committee that editors sometimes took a calculated risk not to contact a subject because they knew or suspected that an injunction would be imposed in respect of an intended publication.The report noted : “91. Clearly pre-notification, in the form of giving opportunity to comment, is the norm across the industry. Nevertheless we were surprised to learn that the PCC does not provide any guidance on pre-notification. Giving subjects of articles the opportunity to comment is often crucial to fair and balanced reporting, and there needs to be explicit provision in the PCC Code itself.” 53. The Select Committee recommended that the Editors ’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception, and that guidance for journalists and editors on pre-notifying should be included in the Editors ’ Codebook. 54. As to the need for a legally binding pre-notification requirement, the Select Committee concluded that: “93. ... a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a ‘ public interest ’ exception. Instead we believe that it would be appropriate to encourage editors and journalists to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of Article 8. We therefore recommend that the Ministry of Justice should amend the Civil Procedure Rules to make failure to pre-notify an aggravating factor in assessing damages in a breach of Article 8. We further suggest that amendment to the Rules should stipulate that no entitlement to aggravated damages arises in cases where there is a public interest in the release of that private information.” III. RELEVANT INTERNATIONAL MATERIALS A. Relevant Council of Europe texts 1. The Parliamentary Assembly of the Council of Europe 55. On 23 January 1970, the Parliamentary Assembly of the Council of Europe adopted Resolution 428, containing a declaration on mass communication media and human rights. As regards the duty of the press to act responsibly, the declaration indicated that it would be desirable to put in place : “ (a) professional training for journalists under the responsibility of editors and journalists; (b) a professional code of ethics for journalists; this should cover inter alia such matters as accurate and well balanced reporting, rectification of inaccurate information, clear distinction between reported information and comments, avoidance of calumny, respect for privacy, respect for the right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights; (c) press councils empowered to investigate and even to censure instances of unprofessional conduct with a view to the exercising of self-control by the press itself. ” 56. The declaration also noted that there was an area in which the exercise of the right of freedom of expression might conflict with the right to privacy protected by Article 8, and that the exercise of the former right should not be allowed to destroy the existence of the latter. It observed that the right to privacy consisted essentially in the right to live one ’ s own life with a minimum of interference and concerned private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against misuse of private communications and protection from disclosure of information given or received by the individual confidentially. The declaration also stated that the right to privacy afforded by Article 8 should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media, and that national legislation should guarantee this protection 57. On 26 June 1998 the Parliamentary Assembly adopted a further resolution, Resolution 1165, on the right to privacy, focusing on public figures. The Resolution noted that personal privacy was often invaded, even in countries with specific legislation to protect it, as people ’ s private lives had become a highly lucrative commodity for certain sectors of the media. It continued: “ 8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people ’ s privacy, claiming that their readers are entitled to know everything about public figures. 9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts. 10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one ’ s private life and the right to freedom of expression. 58. The resolution reaffirmed the importance of every person ’ s right to privacy and of the right to freedom of expression as fundamental to a democratic society. It noted that these rights were neither absolute nor in any hierarchical order, since they were of equal value. Further, the right to privacy afforded by Article 8 required protection against interference by private persons or institutions, including the mass media. The resolution also set out specific guidelines on the necessary content of national legislation: “ i. the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy; THE LAW I. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE CONVENTION 65. The applicant complained that the United Kingdom had violated its positive obligations under Article 8 of the Convention, taken alone and taken together with Article 13, by failing to impose a legal duty on the News of the World to notify him in advance in order to allow him the opportunity to seek an interim injunction and thus prevent publication of material which violated his right to respect for his private life. The Government contested that argument 66. In the Court ’ s view, the complaint under Article 13 as to the absence of an effective domestic remedy is a reformulation of the applicant ’ s complaint under Article 8 of the Convention that the respondent State did not ensure respect for the applicant ’ s private life, and is subsidiary to it (see Armonienė v. Lithuania, no. 36919/02, § 23, 25 November 2008; and Biriuk v. Lithuania, no. 23373/03, § 23, 25 November 2008 ). The Court accordingly considers it appropriate to analyse the applicant ’ s complaints solely under Article 8 of the Convention, which reads in so far as relevant as follows : “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. Victim status a. The parties ’ submissions 67. The Government considered that the applicant was no longer a victim of any violation of the Convention. They noted that he had successfully pursued domestic proceedings and was awarded the sum of GBP 60,000 in damages and recovered GBP 420,000 in costs (see paragraph 28 above). They concluded that he had obtained a remedy before the domestic courts and considered that remedy to constitute adequate and proportionate reparation for the harm he had suffered. They emphasised that the damages awarded in his case were the highest to date in the United Kingdom for an invasion of privacy. The Government further noted that the applicant had recovered damages in other jurisdictions and that it seemed that he had outstanding proceedings in the United Kingdom and elsewhere in respect of the same or similar publications. These included proceedings in Germany, which settled for EUR 250,000, and civil and criminal proceedings in France and Italy regarding the publication which was the subject of the English proceedings. 68. The Government also emphasised that since commencing his legal action against the News of the World, the applicant had sought and obtained a high profile in the United Kingdom as a champion of privacy rights and, in that context, had submitted evidence to Parliament and had participated in a number of press and media interviews. They questioned whether the effect of the publication was as detrimental to the applicant as he claimed. 69. The applicant insisted that he remained a victim of a violation of the Convention notwithstanding the damages award in the domestic proceedings. He argued that damages were not an adequate remedy where private and embarrassing personal facts and intimate photographs were deliberately exposed to the public in print and on the internet. This information could never be expunged from the minds of the millions of people who had read or seen the material and privacy could not be restored to him by an award of damages. The only effective remedy in his case would have been an injunction, a remedy which he was denied by the failure of the newspaper to notify him in advance. Similarly, actions taken in other jurisdictions did not remove his victim status. Such actions were aimed at requiring media and internet websites to remove explicit or highly personal information repeated or taken from the original publication by the News of the World. Indeed, his efforts in this regard were evidence of how persistent and damaging the breach of his privacy had been. 70. Finally, the applicant argued that any implication that he had not suffered from the breach of his privacy was both absurd and offensive. He pointed to the intimate nature of the material disclosed and the humiliation occasioned by its public disclosure, as well as to the impact of the publication on his family. b. The Court ’ s assessment 71. The Court accepts that the publication of the articles, photographs and video images of the applicant participating in sexual acts had a significant impact on the applicant ’ s right to respect for his private life. The fact that, following the widespread dissemination of the material (see paragraph 11 above), the applicant has chosen to pursue what he perceives to be a necessary change in the law does not lessen the extent of any humiliation or injury suffered by him as a result of the original exposure of the material. 72. The Court notes the unusual nature of the applicant ’ s complaint. Having won his case at domestic level and obtained damages, his argument before this Court is directed at the prevailing situation in the United Kingdom in which there is no legal requirement to pre-notify the subject of an article which discloses material related to his private life. Whether or not Article 8 requires, as the applicant has contended, the United Kingdom to put in place a legally binding pre-notification requirement is a matter to be considered in the context of the merits of the case. However, it is clear that no sum of money awarded after disclosure of the impugned material could afford a remedy in respect of the specific complaint advanced by the applicant. 73. In light of the above, the Court finds that the applicant can claim to be a victim in light of the specific nature of his complaint under Article 8 of the Convention. 2. Exhaustion of domestic remedies a. The parties ’ submissions 74. The Government argued that in so far as the applicant sought to claim that the damages awarded in the domestic proceedings were not adequate, he had failed to exhaust domestic remedies as he did not appeal the judge ’ s ruling on exemplary damages. They further relied on the fact that the applicant had elected to pursue a remedy in damages, rather than an account of profits. Finally, they noted that the applicant had failed to bring any proceedings under the Data Protection Act 1998 (see paragraphs 42 - 45 above), which would have allowed him to complain about the unauthorised processing of his personal information and to seek rectification or destruction of his personal data. 75. The applicant reiterated that he was not seeking further damages from the newspaper but was making a complaint about the absence of a law which would have prevented publication of the article which violated his right to respect for private life. Accordingly, the additional remedies proposed by the Government were, in his submission, irrelevant to his complaint. b. The Court ’ s assessment 76. The Court reiterates the unusual nature of the applicant ’ s complaint in the present case (see paragraph 72 above). None of the remedies on which the Government rely could address his specific complaint regarding the absence of a law requiring pre-notification. They are therefore not to be considered remedies which the applicant was required to exhaust before lodging his complaint with this Court. 77. The Government ’ s objection is accordingly dismissed. 3. Conclusion 78. The Court has dismissed the Government ’ s objections as to the applicant ’ s victim status and exhaustion of domestic remedies. It notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions a. The applicant 79. The applicant argued that a positive obligation could arise under Article 8 of the Convention even in the sphere of the relations of individuals between themselves. In the present case, he contended, the respondent State had an obligation to enable him to apply for an injunction by requiring that he be notified prior to publication of an article which interfered with his private life. The applicant emphasised that in his case details of the most intimate parts of his private life were published on the front page, and in several inside pages, of a newspaper with an estimated readership of approximately ten million people in the United Kingdom. Highly intrusive images made by means of secret recordings were also posted on the newspaper ’ s website and inevitably reproduced elsewhere on the internet. The applicant considered that the judgment of Eady J made it clear that had he had an opportunity to apply for an injunction, an injunction would have been granted (see paragraphs 17 - 18 above). 80. In support of his argument that the law should provide for an opportunity to seek an injunction, the applicant emphasised, first, that where a conflict arose between competing interests under Article 8 and Article 10, it was for the courts and not the newspapers to resolve it. He highlighted the dangers of allowing journalists to be the sole judges as to where the balance between the right to freedom of expression and the right to respect for private life lay, as, he claimed, the British press were largely hostile both to the need to protect private life and to the interpretation of that right by the judiciary. Further, he considered that as the law currently stood, editors were encouraged not to notify subjects as, once an article had been published, subjects often decided not to bring legal proceedings for fear of attracting further publicity in respect of the invariably embarrassing or damaging details about their private lives. Second, the applicant argued that where the resolution of the conflict between Articles 8 and 10 occurred only after publication, there was insufficient protection for private life because, once lost, privacy could not be regained. Referring to the judgment of Eady J (see paragraph 27 above), the applicant noted that in defamation cases, it was a complete defence to prove the truth of the published material and that, as a result, damage done to reputation could be removed by proving that the allegations were false. However, the same could not be said in relation to privacy, which was inherently perishable and therefore could not be restored to the victim of the interference. Further, he was of the view that section 12 of the Human Rights Act 1998 provided significant protection for newspapers ’ right to freedom of expression by setting a high threshold before an interim injunction would be granted (see paragraphs 47 - 50 above). He emphasised that pursuant to the Court ’ s jurisprudence on Article 10, there was a need for newspapers claiming protection to comply with the requirements of responsible journalism. In his view, these requirements included a pre-notification requirement. 81. The applicant accepted that the respondent State had a margin of appreciation but contended that it related solely to the scope or efficacy of any pre-notification requirement. His complaint was not that he had received some warning but not enough; rather, he had received no warning at all. He considered that the absence of a uniform approach in other Contracting Parties requiring pre-notification was not decisive. He pointed to the fact that in a number of States, consent played an important role in the context of privacy law and contended that where consent was either required for disclosure or relevant to an assessment of whether the disclosure was lawful, there was no need for a separate pre-notification requirement. He further relied on what he called the “unique nature of the tabloid press” in the United Kingdom, highlighting the unlawful actions of some tabloid reporters and the criticisms made by the tabloid press of developing laws on privacy. 82. While the applicant agreed that the precise mechanics and scope of any system of pre-notification was a matter for the discretion of the respondent State, he considered the difficulties which the Government claimed would arise, for example, in formulating a pre-notification obligation, to be illusory or at the very least exaggerated, given in particular that prior notification already occurred in the vast majority of cases (see paragraph 52 above). In his view, a pre-notification obligation in respect of an intended publication would arise, at the very least, where there were reasonable grounds to believe that the publication would infringe the right to respect for private life, having regard to all the circumstances of the case including any public interest defence. There was nothing unfamiliar about the legal concept of “reasonable belief”. He further pointed out that a form of pre-notification was already envisaged in the Ofcom Code, which imposed an obligation on broadcasters before broadcasting a factual programme to seek comments from anyone it would be unfair to exclude (see paragraph 39 above). 83. The applicant accepted that any system would require exceptions in certain circumstances to allow for legitimate situations where it would be either impractical or contrary to the public interest for the media to notify an individual in advance. Thus where all practicable steps had been taken to notify or where there were compelling reasons not to notify, no sanction for a failure to notify would arise. He disputed that conceptual difficulties would arise in devising any public interest exception to the general requirement, pointing to the provision in the Human Rights Act 1998 that a party seeking an injunction should notify the media in advance of the application and to the exception for “ compelling reasons ” to that general rule set out in the same Act (see paragraph 47 above). 84. As to sanctions, the applicant considered that criminal or regulatory sanctions were required to enforce the pre-notification requirement (citing K.U. v. Finland, no. 2872/02, 2 December 2008 ). He pointed out that criminal proceedings against newspapers and editors for alleged contempt of court, obscenity or breaches of the Official Secrets Acts were possible. b. The Government 85. While the Government accepted that Article 8 could give rise to positive obligations, they contended that a high threshold had to be crossed before Article 8 would be engaged in this way. They distinguished between three types of cases. First, where an applicant had suffered directly from State inaction, such as non-recognition of transsexuals, the case for a positive obligation was strong. Second, where positive action by the State was called for by an applicant to prevent interference by non-State bodies, such as in environmental and media cases, positive obligations were less readily invoked. Third, where an applicant alleged that positive action by individuals was called for, the extent of any positive obligation under Article 8 was at its weakest. The Government argued that relevant factors in determining the extent of the positive duty were the extent to which fundamental and essential aspects of private life were in issue; the prejudice suffered by the applicant; the breadth and clarity of the positive obligation sought to be imposed; and the extent of consensus among Council of Europe member States or internationally. With reference to these factors, they argued that they had no positive obligation to protect the applicant ’ s privacy by providing for a legally binding pre- notification requirement. 86. If there was a positive obligation in the circumstances of the case, the Government contended that there was a significant margin of appreciation available to them in deciding where in domestic law to strike the balance between the requirements of Article 8 and Article 10 and that the current position fell within that range. They argued that an inevitable consequence of a pre-notification requirement was that there would be an increase in the number of interim injunctions granted, which in themselves were a restriction on freedom of expression and for that reason should be approached with caution. 87. The Government pointed out that there was a consistent pattern among Council of Europe member States against a system of pre ‑ notification and disputed in this regard that the tabloid press in the United Kingdom was unique in Europe. As to the role of consent in certain other States, the Government noted that it was not clear whether consent was a strict requirement in the cases mentioned by the applicant, nor was it clear whether there were exceptions. In any case, they considered it questionable whether this approach differed from the approach in the United Kingdom, where consent would be a complete defence to any action for invasion of privacy and failure to pre-notify would be taken into consideration in fixing any damages award. Further, the Government emphasised that an insistence on compulsory pre- notification would be to depart from internationally accepted standards as established by the Council of Europe (see paragraphs 55 - 59 above). In this regard, they noted in particular that the legal position in the United Kingdom complied with the guidelines set out in Resolution 1165 (see paragraph 58 above). 88. The Government also referred to the important role of the PCC and the Editors ’ Code in the system for protection of privacy rights in the United Kingdom. In particular, they highlighted that the PCC had recently upheld a complaint where a newspaper had failed to seek the subject ’ s comments prior to publication (see paragraph 30 above). They also emphasised that the matter had recently been examined in the context of an inquiry by the House of Commons Culture, Media and Sport Committee (see paragraphs 51 - 54 above). After hearing evidence, the Select Committee had decided against recommending a legal requirement of pre-notification (see paragraph 54 above). 89. Finally, the Government considered that the fact that pre-notification was carried out as a matter of good practice in most cases did not mean that there were no insuperable difficulties in imposing a legal requirement to do so. In their view, the introduction of a pre-notification requirement would give rise to a number of practical and principled objections. Difficulties arose regarding the formulation of the scope of any obligation, including the identification of the categories of press and media to which the obligation would apply and the extent of the notification requirement and the circumstances in which it would be engaged, as well as the operation of any “public interest” exception. In this regard, they disputed the applicant ’ s claim that the Ofcom Code provided an example of the kind of pre-notification duty called for, considering the obligation set out in Rule 7.9 of that code to be significantly different. The question of sanctions for a failure to comply with a pre-notification requirement was also problematic. The Government considered it clear that the applicant contemplated criminal sanctions and expressed concern about how to define and enforce any criminal offence. They also warned that an inadequately framed law could give rise to breaches of Article 10. 90. In conclusion, the Government invited the Court to find that the framework of legal regulation in place in the United Kingdom concerning publications which might contravene the right to respect for private life was sufficient to comply with any positive obligations which arose. c. Third party submissions i. Guardian News & Media Ltd 91. The Guardian News & Media Ltd (“ the Guardian”) argued that if the applicant ’ s complaint were to be upheld by the Court, it would seriously and disproportionately fetter the right of the press to publish, and the public to receive, information and opinions in the public interest. A pre-notification requirement would thus have a serious and unjustified chilling effect upon the practical enjoyment of the right to freedom of expression. It would, in their view, also be inconsistent with the concept of responsible journalistic freedom which the Court had consistently emphasised. 92. The Guardian stressed that while the applicant had formulated the pre-notification duty by reference to the facts of his case, its repercussions would be felt far more widely. First, they argued, an alleged breach could involve not only the media but also public authorities, non-governmental organisations or even private individuals. Second, logic dictated that pre ‑ notification would be required not only in privacy cases but in all cases requiring a balancing exercise pursuant to Article 10 § 2. 93. Referring to the wide margin of appreciation in this area, the Guardian considered that the appropriate balance had been struck in the United Kingdom. They highlighted the absence of any European consensus that a pre-notification duty was required. Further, although some countries required that consent be obtained before information regarding private life was disseminated, at least where the public interest was not implicated, a similar number of countries had no such provision. The Guardian also referred to the Data Protection Act 1998 and its parent EC Directive, which did not provide for any pre-notification requirement (see paragraphs 42 - 45 and 64 above). They further referred to the recent inquiry by a House of Commons Select Committee, which in its subsequent report rejected the argument that there was a need for a pre-notification requirement in the United Kingdom (see paragraphs 51 - 54 above). 94. Finally, the Guardian contended that any pre-notification requirement would be unworkable in practice. They considered that it would not always be obvious when the pre-notification rule would be triggered, nor was it clear how the need for a “ public interest ” exception could be catered for. ii. The Media Lawyers ’ Association 95. The Media Lawyers ’ Association (“ the MLA”) contended that a pre-notification requirement was wrong in principle, would be unworkable in practice and would constitute a breach of Article 10 of the Convention. 96. The MLA emphasised the wide margin of appreciation in deciding what measures were required to satisfy any positive obligation in this field. They referred to the lack of any European consensus on the need for a pre-notification duty. They also pointed to the fact that a House of Commons Select Committee had recently rejected the suggestion that there should be a legal pre-notification requirement (see paragraph 54 above). The question whether there was a need to contact a subject prior to publication was, in their view, a matter to be addressed in the context of the ethics of journalism and the codes of practice governing the media. These codes had evolved over time and demonstrated that the media were well aware of the duty to respect each individual ’ s right to privacy. In particular, the MLA noted that the Editors ’ Code gave guidance as to what might be covered by “public interest” (see paragraphs 34 - 35 above). 97. The MLA contended that the duty for which the applicant argued was vague and uncertain in scope. They pointed out that a pre-publication duty would have wide ramifications, potentially applying not just to the media and journalists but to a far broader group. A number of practical questions arose, for example, as to who would have to be contacted by the media in respect of any intended publication, whether the duty would arise in respect of photographs taken in the street of unknown persons, whether it would apply to images or text previously published and whether it would extend to notification of close family members of the subject, who might also be affected by the publication of the material. The MLA further referred to the need for exceptions to any general duty, for example, where there was a good reason not to contact the subject or where there was a public interest in publication. 98. The MLA emphasised the importance of Article 10 and in particular the role of the press as “public watchdog”. They considered that the availability and operation of interim injunctions continued to be a matter of concern in this area and contended that prior restraints on publication constituted a serious interference with the right to freedom of expression. Accordingly, such restraints should only be granted where strictly necessary, and any order granted should be no wider than necessary. They emphasised that injunction proceedings in themselves inevitably led to delay and costs, even if no injunction was eventually granted, and any changes which would encourage the seeking of injunctions would therefore not be desirable. They argued that domestic law struck an appropriate balance between competing rights and interests. iii. The Media Legal Defence Initiative, Index on Censorship, The Media International Lawyers ’ Association, European Publishers ’ Council, The Mass Media Defence Centre, Romanian Helsinki Committee, The Bulgarian Access to Information Programme (AIP) Foundation, Global Witness and Media Law Resource Centre 99. In their joint written submissions, the interveners referred to the importance of the right to freedom of expression. There would, in their view, be significant consequences were a pre-notification requirement to be introduced. It would delay publication of important news, which was itself a perishable commodity, in a wide range of public interest situations wherever the public figure could claim that his psychological integrity was at stake from publication of the truth. The interveners disputed that any balance was required between rights arising under Articles 8 and 10, arguing that there was a presumption in favour of Article 10 and that reputation was a subsidiary right which had to be narrowly interpreted. 100. The interveners further argued that there was a wide margin of appreciation in this area. They emphasised the tradition in common law countries against prior restraints on publication, arguing that a pre ‑ notification requirement would go against the long-standing approach in this area. Further, they pointed out, there was no Europe-wide consensus as to a need for a pre-notification rule. It was also noteworthy that questions of privacy protection had been regularly debated in the United Kingdom in recent years and had been the subject of various reports, including the recent Select Committee report (see paragraph 51 - 54 above). In that report, the applicant ’ s case for a pre-notification requirement had been rejected. 101. The interveners also contended that privacy was inadequately defined to support a pre-notification requirement. However, they accepted that there might be an argument for a notice requirement relating to medical records and photographs taken without consent in private places, for example, but only if reputation were no part of Article 8 and private information were properly defined. In their view, as currently formulated, the requirement called for was so vague as to be unworkable. 102. The interveners considered that any general duty would have to be subject to exceptions, notably to an exception where there was a “ public interest ” in publication. This being the case, it was relevant that in the applicant ’ s case, the editor of the News of the World would have published the story without notification even if there had been a legally binding pre ‑ notification requirement because he genuinely believed that there was a Nazi element to the activities which would have justified publication in the public interest (see paragraph 24 above). 103. The interveners emphasised that even successfully defended injunction proceedings could cost a newspaper GBP 10,000; an unsuccessful newspaper could pay GBP 60,000. It was simply not viable for the media to contest every case where compulsory notification would be followed by a request for an injunction. This was the chilling effect of a pre ‑ notification requirement. 2. The Court ’ s assessment 104. The Court recalls that Eady J in the High Court upheld the applicant ’ s complaint against the News of the World (see paragraph 25 above). He found that there was no Nazi element to the applicant ’ s sexual activities. He further criticised the journalist and the editor for the casual and cavalier manner in which they had arrived at the conclusion that there was a Nazi theme. In the absence of any Nazi connotations, there was no public interest or justification in the publication of the articles or the images. Reflecting the grave nature of the violation of the applicant ’ s privacy in this case, Eady J awarded GBP 60,000 in damages. The newspaper did not appeal the judgment. In light of these facts the Court observes that the present case resulted in a flagrant and unjustified invasion of the applicant ’ s private life. 105. The Court further notes that as far as the balancing act in the circumstances of the applicant ’ s particular case was concerned, the domestic court firmly found in favour of his right to respect for private life and ordered the payment to the applicant of substantial monetary compensation. The assessment which the Court must undertake in the present proceedings relates not to the specific facts of the applicant ’ s case but to the general framework for balancing rights of privacy and freedom of expression in the domestic legal order. The Court must therefore have regard to the general principles governing the application of Article 8 and Article 10, before examining whether there has been a violation of Article 8 as a result of the absence of a legally binding pre-notification requirement in the United Kingdom. a. General principles i Article 8 106. It is clear that the words “ the right to respect for ... private ... life ” which appear in Article 8 require not only that the State refrain from interfering with private life but also entail certain positive obligations on the State to ensure effective enjoyment of this right by those within its jurisdiction (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31 ). Such an obligation may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of the relations of individuals between themselves (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004 ‑ VI; and Stubbings and Others v. the United Kingdom, 22 October 1996, § 61-62, Reports of Judgments and Decisions 1996 ‑ IV ). 107. The Court emphasises the importance of a prudent approach to the State ’ s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect ( Karakó v. Hungary, no. 39311/05, § 19, 28 April 2009 ). The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States ’ margin of appreciation (see, inter alia, X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91; and Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003 ‑ III ). However, this discretion goes hand in hand with European supervision (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59(c), Series A no. 216; and Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ XI ). 108. The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be accorded to the State in a case in which Article 8 of the Convention is engaged. First, the Court reiterates that the notion of “respect” in Article 8 is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: bearing in mind the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case (see Sheffield and Horsham v. the United Kingdom, 30 July 1998, § 52, Reports 1998 ‑ V ). Thus Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII; and Armonienė, cited above, § 38 ). In this regard, the Court recalls that by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal order (see, mutatis mutandis, Handyside, cited above, § 48; A, B and C v. Ireland [GC], no. 25579/05, § 232, 16 December 2010; and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011 ). 109. Second, the nature of the activities involved affects the scope of the margin of appreciation. The Court has previously noted that a serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 77, ECHR 2002 ‑ VI ). Thus, in cases concerning Article 8, where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State is correspondingly narrowed (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ IV; and A, B and C v. Ireland [GC], cited above, § 232 ). The same is true where the activities at stake involve a most intimate aspect of private life (see, mutatis mutandis, Dudgeon v. the United Kingdom, 22 October 1981, § 52, Series A no. 45; and A.D.T. v. the United Kingdom, no. 35765/97, § 37, ECHR 2000-IX ). 110. Third, the existence or absence of a consensus across the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, is also relevant to the extent of the margin of appreciation : where no consensus exists, the margin of appreciation afforded to States is generally a wide one (see Evans, cited above, § 77; X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports 1997 ‑ II; and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ XIII ). Similarly, any standards set out in applicable international instruments and reports are relevant to the interpretation of the guarantees of the Convention and in particular to the identification of any common European standard in the field (see Tănase v. Moldova [GC], no. 7/08, § 176, ECHR 2010 ‑ ... ). 111. Finally, in cases where measures which an applicant claims are required pursuant to positive obligations under Article 8 would have an impact on freedom of expression, regard must be had to the fair balance that has to be struck between the competing rights and interests arising under Article 8 and Article 10 (see MGN Limited, cited above, § 142 ), rights which merit, in principle, equal respect ( Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; compare and contrast Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65, Series A no. 30 ). ii. Article 10 112. The Court emphasises the pre-eminent role of the press in informing the public and imparting information and ideas on matters of public interest in a State governed by the rule of law ( see Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 59, 15 December 2009; MGN Limited, cited above, § 141; and De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I). Not only does the press have the task of imparting such information and ideas but the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (Observer and Guardian, cited above, § 59; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; Gutiérrez Suárez v. Spain, no. 16023/07, § 25, 1 June 2010; and MGN Limited, cited above, § 141). 113. It is to be recalled that methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court to substitute its own views for those of the press as to what technique of reporting should be adopted ( see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). However, editorial discretion is not unbounded. The press must not overstep the bounds set for, among other things, “the protection of ... the rights of others”, including the requirements of acting in good faith and on an accurate factual basis and of providing “reliable and precise” information in accordance with the ethics of journalism ( see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-X; Times Newspapers Ltd v. United Kingdom (nos. 1 and 2), no. 3002/03 and 23676/03, § 42, ECHR 2009 ‑ ...; and MGN Limited, cited above, § 141 ). 114. The Court also reiterates that there is a distinction to be drawn between reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual ’ s private life (see Armonienė, cited above, § 39). In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a “public watchdog” are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person ’ s strictly private life ( Von Hannover, cited above, § 65; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40; and MGN Limited, cited above, § 143 ). Such reporting does not attract the robust protection of Article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation (see Société Prisma Presse v. France ( dec .), nos. 66910/01 and 71612/01, 1 July 2003; Von Hannover, cited above, § 66; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 77, 9 November 2006; Hachette Filipacchi Associés ( ICI PARIS ), cited above, 40; and MGN Limited, cited above, § 143 ). While confirming the Article 10 right of members of the public to have access to a wide range of publications covering a variety of fields, the Court stresses that in assessing in the context of a particular publication whether there is a public interest which justifies an interference with the right to respect for private life, the focus must be on whether the publication is in the interest of the public and not whether the public might be interested in reading it. 115. It is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media (see Jersild, cited above, § 31; and Peck v. the United Kingdom, no. 44647/98, § 62, ECHR 2003 ‑ I ). Accordingly, although freedom of expression also extends to the publication of photographs, the Court recalls that this is an area in which the protection of the rights of others takes on particular importance, especially where the images contain very personal and intimate “information” about an individual or where they are taken on private premises and clandestinely through the use of secret recording devices (see Von Hannover, cited above, § 59; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 47; and MGN Limited, cited above, § 143 ). Factors relevant to the assessment of where the balance between the competing interests lies include the additional contribution made by the publication of the photos to a debate of general interest as well as the content of the photographs (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002 ). 116. The Court recalls that the nature and severity of any sanction imposed on the press in respect of a publication are relevant to any assessment of the proportionality of an interference with the right to freedom of expression (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Lešník v. Slovakia, no. 35640/97, § 63, ECHR 2003-IVl and Karsai v. Hungary, no. 5380/07, § 36, 1 December 2009 ). Thus the Court must exercise the utmost caution where measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see Jersild, cited above, § 35; and Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004 ‑ XI ). 117. Finally, the Court has emphasised that while Article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian, cited above, § 60 ). The Court would, however, observe that prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest. b. Application of the general principles to the facts of the case 118. As noted above (see paragraph 106 ), it is clear that a positive obligation arises under Article 8 in order to ensure the effective protection of the right to respect for private life. The question for consideration in the present case is whether the specific measure called for by the applicant, namely a legally binding pre-notification rule, is required in order to discharge that obligation. 119. The Court observes at the outset that this is not a case where there are no measures in place to ensure protection of Article 8 rights. A system of self-regulation of the press has been established in the United Kingdom, with guidance provided in the Editors ’ Code and Codebook and oversight of journalists ’ and editors ’ conduct by the PCC (see paragraphs 29 - 38 above). This system reflects the 1970 declaration, the 1998 resolution and the 2008 resolution of the Parliamentary Assembly of the Council of Europe (see paragraphs 55 and 58 - 59 above). While the PCC itself has no power to award damages, an individual may commence civil proceedings in respect of any alleged violation of the right to respect for private life which, if successful, can lead to a damages award in his favour. In the applicant ’ s case, for example, the newspaper was required to pay GBP 60,000 damages, approximately GBP 420,000 in respect of the applicant ’ s costs and an unspecified sum in respect of its own legal costs in defending the claim. The Court is of the view that such awards can reasonably be expected to have a salutary effect on journalistic practices. Further, if an individual is aware of a pending publication relating to his private life, he is entitled to seek an interim injunction preventing publication of the material. Again, the Court notes that the availability of civil proceedings and interim injunctions is fully in line with the provisions of the Parliamentary Assembly ’ s 1998 resolution (see paragraph 58 above). Further protection for individuals is provided by the Data Protection Act 1998, which sets out the right to have unlawfully collected or inaccurate data destroyed or rectified (see paragraphs 42 - 45 above). 120. The Court further observes that, in its examination to date of the measures in place at domestic level to protect Article 8 rights in the context of freedom of expression, it has implicitly accepted that ex post facto damages provide an adequate remedy for violations of Article 8 rights arising from the publication by a newspaper of private information. Thus in Von Hannover, cited above, the Court ’ s analysis focused on whether the judgment of the domestic courts in civil proceedings brought following publication of private material struck a fair balance between the competing interests. In Armonienė, cited above, a complaint about the disclosure of the applicant ’ s husband ’ s HIV-positive status focused on the “derisory sum” of damages available in the subsequent civil proceedings for the serious violation of privacy. While the Court has on occasion required more than civil law damages in order to satisfy the positive obligation arising under Article 8, the nature of the Article 8 violation in the case was of particular importance. Thus in X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91, the Court insisted on the need for criminal law provisions to achieve deterrence in a case which involved forced sexual intercourse with a sixteen year old mentally handicapped girl. In K.U. v. Finland, no. 2872/02, § § 46-47, 2 December 2008, the availability of civil law damages from an Internet service provider was inadequate where there was no possibility of identifying the person who had posted an advert in the name of the applicant, at the time only twelve years old, on a dating website, thus putting him at risk of sexual abuse. 121. In the present case the Court must consider whether, notwithstanding its past approach in cases concerning violations of the right to respect for private life by the press, Article 8 requires a pre-notification rule in order to ensure effective protection of the right to respect for private life. In doing so, the Court will have regard, first, to the margin of appreciation available to the respondent State in this field (see paragraphs 108 - 110 above) and, second, to the clarity and potential effectiveness of the rule called for by the applicant. While the specific facts of the applicant ’ s case provide a backdrop to the Court ’ s consideration of this question, the implications of any pre-notification requirement are necessarily far wider. However meritorious the applicant ’ s own case may be, the Court must bear in mind the general nature of the duty called for. In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism. The Court recalls that the introduction of restrictions on the latter type of journalism requires careful scrutiny. i. The margin of appreciation 122. The Court recalls, first, that the applicant ’ s claim relates to the positive obligation under Article 8 and that the State in principle enjoys a wide margin of appreciation (see paragraph 108 above). It is therefore relevant that the respondent State has chosen to put in place a system for balancing the competing rights and interests which excludes a pre ‑ notification requirement. It is also relevant that a parliamentary committee recently held an inquiry on privacy issues during which written and oral evidence was taken from a number of stakeholders, including the applicant and newspaper editors. In its subsequent report, the Select Committee rejected the argument that a pre-notification requirement was necessary in order to ensure effective protection of respect for private life (see paragraph 54 above). 123. Second, the Court notes that the applicant ’ s case concerned the publication of intimate details of his sexual activities, which would normally result in a narrowing of the margin of appreciation (see paragraph 109 above). However, the highly personal nature of the information disclosed in the applicant ’ s case can have no significant bearing on the margin of appreciation afforded to the State in this area given that, as noted above (see paragraph 121 above), any pre-notification requirement would have an impact beyond the circumstances of the applicant ’ s own case. 124. Third, the Court highlights the diversity of practice among member States as to how to balance the competing interests of respect for private life and freedom of expression (see paragraphs 62 - 63 above). Indeed the applicant has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned. Nor has the applicant pointed to any international instruments which require States to put in place a pre-notification requirement. Indeed, as the Court has noted above (see paragraph 119 ), the current system in the United Kingdom fully reflects the resolutions of the Parliamentary Assembly of the Council of Europe (see paragraphs 56 - 59 above). The Court therefore concludes that the respondent State ’ s margin of appreciation in the present case is a wide one. ii. The clarity and effectiveness of a pre-notification requirement 125. The applicant considered that the duty should be triggered where any aspect of private life was engaged. It would therefore not be limited to the intended disclosure of intimate or sexual details of private life. As such, the duty would be a relatively broad one. Notwithstanding the concerns expressed by the Government and the interveners (see paragraphs 89, 94, 97 and 101 above) the Court considers that the concept of “private life” is sufficiently well understood for newspapers and reporters to be able to identify when a publication could infringe the right to respect for private life. Specific considerations would arise, for example in the context of photographs of crowds, but suitable provisions could be included in any law. The Court is further of the view that a satisfactory definition of those who would be subject to the requirement could be found. It would appear possible, for example, to provide for a duty which would apply to those within the purview of the Editors ’ Code. 126. However, the Court is persuaded that concerns regarding the effectiveness of a pre-notification duty in practice are not unjustified. Two considerations arise. First, it is generally accepted that any pre ‑ notification obligation would require some form of “public interest” exception (see paragraphs 83, 89, 94, 97 and 102 above). Thus a newspaper could opt not to notify a subject if it believed that it could subsequently defend its decision on the basis of the public interest. The Court considers that in order to prevent a serious chilling effect on freedom of expression, a reasonable belief that there was a “public interest” at stake would have to be sufficient to justify non-notification, even if it were subsequently held that no such “public interest” arose. The parties ’ submissions appeared to differ on whether “public interest” should be limited to a specific public interest in not notifying (for example, where there was a risk of destruction of evidence) or extend to a more general public interest in publication of the material. The Court would observe that a narrowly defined public interest exception would increase the chilling effect of any pre-notification duty. 127. In the present case, the defendant newspaper relied on the belief of the reporter and the editor that the sexual activities in which the applicant participated had Nazi overtones. They accordingly argued that publication was justified in the public interest. Although Eady J criticised the casual and cavalier manner in which the News of the World had arrived at the conclusion that there was a Nazi element, he noted that there was significant scope for differing views on the assessment of the “public interest” and concluded that he was not in a position to accept that the journalist and editor concerned must have known at the time that no public interest defence could succeed (see paragraphs 23 - 24 above). Thus, in the applicant ’ s own case, it is not unlikely that even had a legally binding pre-notification requirement been in place at the relevant time, the News of the World would have chosen not to notify in any event, relying at that time on a public interest exception to justify publication. 128. Second, and more importantly, any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it. A regulatory or civil fine, unless set at a punitively high level, would be unlikely to deter newspapers from publishing private material without pre-notification. In the applicant ’ s case, there is no doubt that one of the main reasons, if not the only reason, for failing to seek his comments was to avoid the possibility of an injunction being sought and granted (see paragraphs 21 and 52 above). Thus the News of the World chose to run the risk that the applicant would commence civil proceedings after publication and that it might, as a result of those proceedings, be required to pay damages. In any future case to which a pre-notification requirement applied, the newspaper in question could choose to run the same risk and decline to notify, preferring instead to incur an ex post facto fine. 129. Although punitive fines or criminal sanctions could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of Article 10 of the Convention. It reiterates in this regard the need to take particular care when examining restraints which might operate as a form of censorship prior to publication. It is satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention. iii. Conclusion 130. As noted above, the conduct of the newspaper in the applicant ’ s case is open to severe criticism. Aside from publication of the articles detailing the applicant ’ s sexual activities, the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Despite the applicant ’ s efforts in a number of jurisdictions, these images are still available on the Internet. The Court can see no possible additional contribution made by the audiovisual material (see paragraph 115 above), which appears to have been included in the News of the World ’ s coverage merely to titillate the public and increase the embarrassment of the applicant. 131. The Court, like the Parliamentary Assembly, recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media (see paragraph 57 above). The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination. In this regard the Court takes note of the recommendation of the Select Committee that the Editors ’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception (see paragraph 53 above). 132. However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention by the absence of such a requirement in domestic law. | The Court found that there had been no violation of Article 8 (right to respect for private life) of the Convention. It held in particular that the European Convention on Human Rights did not require media to give prior notice of intended publications to those who feature in them. |
990 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | THE LAW SCOPE OF THE APPLICATION 52. The Court observes that on 26 August 2015 the respondent Government were given notice of the application which concerned the applicant ’ s complaints under Article 5, Article 6 § 2, Article 10 and Article 18 of the Convention. As regards the complaint under Article 6 § 2, in her original application the applicant complained of a breach of her right to the presumption of innocence because of the domestic courts ’ decisions of 5 and 11 December 2014 and the statement made by the Prosecutor General ’ s Office on 6 December 2014. In her observations after notice of the application was given to the respondent Government the applicant raised additional complaints, alleging under Article 6 § 2 that the domestic courts ’ detention orders of 27 January, 6 March and 15 May 2015 had also breached her right to the presumption of innocence. She raised new complaints under Article 13 of a lack of effective remedies and under Article 14 of discrimination on the grounds of her political views. 53. The Court reiterates that, as a general rule, it does not examine any new matters raised after the Government have been given notice of the application, unless the new matters are an elaboration on the applicant ’ s original complaints to the Court (see Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 78, 22 May 2014 ). Because the applicant may subsequently elucidate or elaborate upon his or her initial submissions, the Court must take into account not only the application form but the entirety of his or her submissions in the course of the proceedings before it which may eliminate any initial omissions or obscurities (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 122 and 129, 20 March 2018). 54. In the present case the Court notes that the applicant ’ s new complaints are not an elaboration of her original complaints, on which the parties have commented, but constitute new matters which were not covered in the original application sent to the Government. The Court does not therefore find it appropriate to examine these complaints in the present context (see Seleznev v. Russia, no. 15591/03, § 56, 26 June 2008 and compare Ilgar Mammadov, cited above, § 78-79). The applicant had the opportunity to lodge new applications in respect of any other complaints relating to the subsequent events in her case in accordance with the requirements set out in Rule 47 of the Rules of Court. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION 55. Relying on Article 5 §§ 1 and 3 of the Convention, the applicant complained that her arrest and detention had not been based on a reasonable suspicion that she had committed a criminal offence, and that the domestic courts had failed to provide relevant and sufficient reasons justifying the need for her continued detention. Article 5 §§ 1 (c) and 3 of the Convention reads: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” Admissibility 56. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicant 57. The applicant submitted that the prosecuting authorities and domestic courts had failed to make genuine enquiries into the basic facts of the case to verify if the allegations against her had been well-founded. She argued that that the charges brought against her had not been supported by any material. 58. In particular, as regards the charge of “incitement to suicide”, the authorities had failed to demonstrate that the applicant had used threats or humiliated T.M., which was one of the constituent elements of this crime. The applicant ’ s arguments that she had not seen T.M. since 9 March 2014 and that T.M. had had a history of mental disorders and attempted suicide in the past had all been ignored by the domestic courts. Furthermore, this accusation had not been supported by any evidence, as T. M. had admitted following the applicant ’ s arrest that he had been coerced by the authorities into providing false evidence against her. The fact that there had been no reasonable suspicion that the applicant had committed this crime was also confirmed by the fact that she had been acquitted by the trial court of this charge. 59. With respect to the criminal charge of illegal entrepreneurship, the applicant submitted that this charge had only been based on her alleged lack of accreditation and Azadliq Radio ’ s lack of a broadcasting licence, which had not constituted per se a crime under domestic law at the material time. Furthermore, even assuming that there had been a regulatory breach, this should have been the administrative responsibility of RFE/RL or the US agency that governed its broadcast, and not the criminal responsibility of any of the journalists working for Azadliq Radio, including herself. 60. With respect to the charge of embezzlement, the applicant submitted that there had been no information or evidence supporting the authorities ’ version of events. In particular, there had been no basis to back up the allegation that she had illegally employed staff to work for Azadliq Radio. In support of her submissions, she provided a copy of the service contract signed between a journalist, J.E., and RFE/RL. It could be seen from this contract that it had been signed on behalf of RFE/RL by E.P., acting as its official representative in Azerbaijan and concluded on 1 October 2009, when the applicant had already been head of the Baku bureau. 61. As to the charges of tax evasion and abuse of power, the applicant submitted that they had simply been incomprehensible and had lacked any factual basis. 62. The applicant further argued that the domestic courts had failed to provide “relevant and sufficient” reasons justifying her pre-trial detention. She also complained that the decision of the Baku Court for Serious Crimes of 24 July 2015 had been unlawful as it had failed to set a time-limit or rely on any grounds justifying her detention pending trial. (b) The Government 63. The Government submitted that the applicant ’ s arrest and detention had been based on a reasonable suspicion that she had committed criminal offences. In particular, they stressed that there had not been “any government actions” behind the applicant ’ s arrest, and that she had been arrested on suspicion of having committed the criminal offence of “incitement to suicide” following a complaint lodged by a private individual. According to the Government, this accusation was supported “ by the initial evidence, including the statements of the victim and other witnesses ”. As regards the charges against the applicant in relation to illegal entrepreneurship, embezzlement, tax evasion and abuse of power, the Government noted that “those facts had been revealed within the investigation of a criminal case connected with the allegedly illegal activities of some non -commercial organisations, including the one the applicant had worked for”. 64. The Government further indicated that the applicant ’ s detention had been justified and that the domestic courts had given sufficient and relevant reasons for her detention. (c) Third parties 65. The observations submitted by the Council of Europe Commissioner for Human Rights concerned the situation of human rights defenders, journalists and civil society activists in Azerbaijan which, according to the Commissioner, had amounted to “a clear pattern of repression against those expressing dissent or criticism of the authorities”. Those comments were to a large extent similar to those made in Rasul Jafarov v. Azerbaijan ( no. 69981/14, §§ 99 ‑ 113, 17 March 2016). 66. [4] The UN Special Rapporteur and two intervening organisations also expressed their concern as regards the alleged ongoing crackdown on civil society in Azerbaijan. With reference to various international reports and the arrests of various well ‑ known individuals, the interveners were of the view that the present case was a perfect example of a systematic practice of arbitrary detention and selective criminal prosecution of journalists, human rights defenders and others in Azerbaijan in retaliation for their exercise of the right to freedom of expression, assembly and association and their cooperation with international organisations. The Court ’ s assessment 67. The Court will examine the applicant ’ s complaints on the basis of the relevant general principles set out, in particular, in the case of Ilgar Mammadov (cited above, § 87- 90 respectively). The requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. As a general rule, problems concerning the existence of a “reasonable suspicion” arise at the level of the facts. The very specific context of the present case calls for a high level of scrutiny of the facts. The Court ’ s task is to verify whether there existed sufficient objective elements that could lead an objective observer to reasonably believe that the applicant might have committed the acts alleged by the prosecuting authorities ( ibid., § 94). Besides, the Court has to have regard to all the relevant circumstances in order to be satisfied that objective information existed showing that the suspicion against the applicants was “reasonable”. In this connection, at the outset, the Court considers it necessary to have regard to the general context of the facts of this particular case (see Rasul Jafarov cited above, § 120). 68. The Court observes that the applicant ’ s arrest and pre-trial detention were based on charges relating to two separate sets of facts: the first set formed the basis for the charge of incitement to suicide, while the second concerned various charges in relation to the applicant ’ s work at Azadliq Radio. In order to assess the existence of a “ reasonable suspicion ” for the applicant ’ s arrest and detention, the Court will proceed to examine the facts giving rise to the above charges in turn. (a) As regards the charge of incitement to suicide 69. The Court observes that between 5 December 2014 and 6 March 2015 the applicant was detained solely on the basis of the charge of incitement to suicide. In her submissions she disputed the prosecution ’ s version of events in relation to this charge. However, the Court notes that it does not need to determine the veracity of each and every allegation made by the applicant, as the main question before the Court is whether T.M. ’ s complaint could have formed the basis for a reasonable suspicion against her, regard being had to the allegation that the impugned charge had been brought as a result of coercion on the complainant by the authorities. (i) As to the allegation that T.M. ’ s complaint was obtained under coercion 70. The Court observes that the applicant, relying on T.M. ’ s public statements, argued that his complaint had been obtained by the authorities under coercion. The Government, without specifically commenting on this allegation, submitted that the applicant had been arrested following a complaint lodged by a private individual. In this context, the Court observes at the outset that the crime of incitement to suicide is subject to public prosecution and that a complaint lodged by the victim is therefore not a prerequisite to instituting criminal proceedings into this criminal offence (see paragraph 50 above ). This is also confirmed in the present case by the fact that the investigating authorities had opened a criminal investigation in connection with T.M. ’ s attempt to commit suicide following the incident and before he lodged a formal complaint implicating the applicant (see paragraph 17 above). Therefore, the Court will have regard to the investigative measures carried out and the evidence collected by the prosecuting authorities following T.M. ’ s attempt to commit suicide. 71. In this connection, the Court observes that despite the Court ’ s specific request for all documents relating to the criminal proceedings against the applicant to be submitted, no documents were provided by the Government demonstrating that any investigative measures had been carried out following the institution of criminal proceedings into the incident, in particular, in the period between 24 October and 25 November 2014 (compare Zayidov v. Azerbaijan, no. 11948/08, § 44, 20 February 2014). It also remains unclear whether T.M. was questioned by the authorities as regards the reasons for his suicide attempt since no records of his questioning have been made available by the Government. As regards the period after T.M. lodged a formal complaint against the applicant, it has not been demonstrated that the prosecuting authorities took any measures in order to confirm or dispel the suspicion against the applicant which allegedly provided the grounds for her arrest and continued detention. Notably, no evidence was shown to exist which corroborated the alleged suspicion that the applicant had subjected T.M. to “regular humiliation on social networks and among their acquaintances” and had therefore incited him to commit suicide. 72. The Court has further regard to the fact that no official inquiry or explanation by the prosecuting authorities followed after T.M. publicly stated that he had been subjected to pressure because of his intention to withdraw his complaint (see paragraphs 28-31 above). Even after T.M. explicitly stated later on that he had been forced to submit false evidence against the applicant (see paragraph 32 above), no inquiry was carried out by the authorities to verify those allegations. 73. Lastly, the Court notes that despite the fact that T.M. ’ s allegations concerning his coercion by the authorities were sufficiently detailed and consistent throughout the relevant period, the Government did not provide any explanations or comments to the Court to that end. 74. Thus, in the light of the specific context of the present case and having regard, in particular, to T.M. ’ s public statements and the Government ’ s silence in the face of the seriousness of the allegations made, the Court has no choice but to accept that T.M. was coerced by the authorities to make a false claim which implicated the applicant and led to her being charged with the crime in question. (ii) As to the existence of a reasonable suspicion against the applicant 75. The Courts notes at the outset that the applicant argued that the lack of reasonable suspicion that she had committed this crime was also confirmed by the fact that she was later acquitted by the trial court of this charge. In this connection, the Court reiterates that in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c) it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody. Nor is it necessary that the person detained should ultimately have been charged or taken before a court. The object of detention for questioning is to further a criminal investigation by confirming or dispelling the suspicions which provide the grounds for the detention. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see Ilgar Mammadov, cited above, § 87). 76. Therefore, the Court notes that the fact that information which formed the basis for a reasonable suspicion to justify an individual ’ s arrest or continued detention is deemed insufficient or unreliable at a later stage of the proceedings cannot retrospectively nullify the “reasonableness” of the suspicion which objectively existed and persisted at the material time. However, the situation in the present case is different. As the Court has found above, the applicant ’ s arrest and continued detention was based on a false claim made as a result of coercion. In such circumstances, it cannot be said there existed objective elements to justify a “reasonable suspicion” that the facts at issue had actually occurred (see Włoch v. Poland, no. 27785/95, § 108, ECHR 2000 ‑ XI). Accordingly, the Court finds that T.M. ’ s complaint could not have justified the “reasonableness ” of the suspicion on which the applicant ’ s arrest and detention was based. 77. As regards other evidence, including statements of witnesses, as referred to by the Government (see paragraph 63 above), the Court observes that this unspecified evidence did not appear in the official documents of the prosecuting authorities or domestic courts concerning the applicant ’ s pre ‑ trial detention (see Rashad Hasanov and Others v. Azerbaijan, nos. 48653/13 and 3 others, § 105, 7 June 2018 and Ilgar Mammadov, cited above, § 96, and compare Tanrıkulu and Others v. Turkey, nos. 29918/96 and 2 others, § 30, 6 October 2005). Nor did the Government present such material before this Court (see Lazoroski v. the former Yugoslav Republic of Macedonia, no. 4922/04, § 48, 8 October 2009 and compare Merabishvili v. Georgia [GC], no. 72508/13, § 187, ECHR 2017 (extracts)). 78. Lastly, the Court notes that the applicant ’ s complaints at the domestic level concerning the lack of any objective evidence in support of this accusation were completely ignored by the courts. In this regard, the Court points out that, in accordance with a decision of the Plenum of the Supreme Court of 3 November 2009, domestic courts were required to subject prosecuting authorities ’ applications for remand in custody to close scrutiny and verify the existence of a suspicion against the accused by making use of their power under Article 447.5 of the CCrP to request and review the “initial evidence” in the prosecution ’ s possession. However, it appears that this was not done in the present case (compare Rashad Hasanov and Others and Ilgar Mammadov, both cited above, § 105 and § 97 respectively). 79. Having regard to the above, the Court finds that there is nothing in the material before it that would satisfy an objective observer at the relevant time that the applicant may have committed the criminal offence of incitement to suicide. The Court therefore concludes that the applicant ’ s arrest and pre-trial detention were not based on a “reasonable suspicion” of her having committed this crime. (b) As regards the charges related to the applicant ’ s work at Azadliq Radio 80. The Court observes that on 13 February 2015 the applicant was charged with additional criminal offences under Articles 179.3.2 (high-level embezzlement), 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (aggravated abuse of power) of the Criminal Code. In this context, the Court finds striking similarities between the present case and the cases of Rasul Jafarov and Mammadli (both cited above) where the applicants, well-known NGO activists, were charged with exactly the same criminal offences, but in relation to their NGO activities, while the charges against the applicant in the present case mainly related to her activities as head of the Baku bureau of Azadliq Radio. In fact, the Government themselves acknowledged that these charges related to facts which had been revealed within the framework of another criminal case opened into “alleged illegal activities of some non-commercial organisations”. 81. Notably, as far as the charges of illegal entrepreneurship and large-scale tax evasion are concerned, in the cases cited above, all the misconduct attributed to the applicants essentially stemmed from the fact that they had operated an NGO lacking State registration and had failed to register the grants received, which as a result had corrupted its purpose, being characterised as a de facto commercial activity (ibid., § 122 and § 57 respectively). In the present case, the offences with which the applicant was charged stemmed from the fact that she allegedly continued the broadcasting services of Azadliq Radio without the required State licence and exercised journalistic activities without having the necessary accreditation from the relevant authorities. In the prosecuting authorities ’ view, such failures resulted in the applicant being involved in a de facto commercial activity for which she had failed to pay profit tax. The Court, for its part, finds that the manner the prosecuting authorities construed the relevant facts was not sustainable for the following reasons. Firstly, the prosecution did not demonstrate why the applicant, as an employee of RFE/RL or as the head of its Baku bureau, had to bear individual criminal responsibility for the alleged failure of RFE/RL to carry out its broadcasting services without the required licence. Secondly, the Court notes that the Government failed to refer to any provisions of domestic law which criminalised the alleged irregularities in question, namely, the lack of a radio broadcasting licence and lack of accreditation of a foreign journalist. For example, the Court observes that a breach of licensing rules in the field of television and radio broadcasting was punishable by an administrative fine (see paragraph 51 above ). Lastly and most importantly, the Court notes that domestic law provided clear definitions of commercial and non ‑ commercial activities, with the differentiating factor being whether or not the purpose of the activities was to generate profit. Non-commercial activity was not subject to profit tax or value-added tax (see Rasul Jafarov, cited above, § 126). As in the case of non-registered grants ( ibid., 128), it has not been demonstrated by the Government that the mere lack of a broadcasting licence or accreditation could automatically transform an activity of a non-commercial organisation into a commercial one. Apart from the above -mentioned alleged administrative irregularities, the assumption that the applicant ’ s activities were aimed at generating profit was not supported by any other information. In such circumstances, the Court finds that the applicant could not have been reasonably suspected of having committed the criminal offence of “illegal entrepreneurship”, because there were no facts, information or evidence showing that she had engaged in commercial activity or the offence of “tax evasion”, as in the absence of such commercial activity there could be no taxable profit (ibid., § 130). 82. As regards the charges of embezzlement and abuse of power, the Court observes that the applicant was accused of employing several individuals to work at the Baku bureau of Azadliq Radio on the basis of civil contracts instead of employment contracts. Firstly, the Court notes that there was no evidence showing that those allegedly illegal contracts were signed by the applicant. The Government argued that this allegation was supported by the fact that she had been responsible for recruiting and managing staff in accordance with her employment contract. However, the applicant submitted a copy of a service contract between RFE/RL and a freelance journalist concluded at the time she was head of the Baku bureau. This contract was not signed by the applicant herself, but rather by an official representative of RFE/RL in Azerbaijan, who had actually also signed one of the employment contracts concluded with the applicant (see paragraph 9 above ). The authenticity of this document was not disputed by the Government. Accordingly, the Court finds that the above information alone, as relied on by the Government, is not sufficient to reasonably suspect that the applicant illegally recruited staff to work at the Baku bureau of Azadliq Radio and therefore was engaged in embezzlement or abuse of power. (c) Conclusion 83. Having regard to the above considerations and the Court ’ s case- law on the matter, the Court finds that the material put before it does not meet the minimum standard set by Article 5 § 1 (c) of the Convention for the reasonableness of a suspicion required for an individual ’ s arrest and continued detention. The Court therefore concludes that the applicant was deprived of her liberty in the absence of a “reasonable suspicion” of her having committed a criminal offence. 84. There has accordingly been a violation of Article 5 § 1 of the Convention. 85. In the light of the above findings the Court does not consider it necessary to examine separately whether the reasons given by the domestic courts for the applicant ’ s continued detention were based on “relevant and sufficient” grounds, as required by Article 5 § 3 of the Convention (see Rasul Jafarov, cited above, § 135). ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 86. Relying on Articles 5 and 6 of the Convention, the applicant complained that she had not had enough time and facilities to challenge the lawfulness of her detention, and that the domestic courts ordering her detention had not been independent and impartial. She further complained that the authorities had failed to conduct an effective review of the lawfulness of her detention and to provide reasons for their decisions. 87. The Court notes that the applicant ’ s complaints falls to be examined under Article 5 § 4 of the Convention alone, this provision being lex specialis in this field. It provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” Admissibility 88. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions 89. The applicant maintained her complaint. 90. The Government argued that the applicant and her lawyers had been heard by the domestic judges and had been able to put questions to the prosecuting authorities during the court hearings. Nothing in the case file indicated that the proceedings had not been adversarial or had otherwise been unfair. The Court ’ s assessment 91. The Court notes that it has already found a violation of Article 5 § 4 of the Convention in similar circumstances in a number of cases against Azerbaijan (see, for example, Ilgar Mammadov and Rasul Jafarov both cited above, § 118 and § 143 respectively ). As in those cases, the domestic courts in the present case systematically failed to verify the existence of a reasonable suspicion underpinning the applicant ’ s arrest and detention despite her repeated complaints to this end and, by using vague and standard wording, automatically endorsed the prosecution ’ s applications without any genuine and independent review of the “lawfulness” of her detention. Having regard to its well-established case-law on the matter, the Court finds that the above considerations are sufficient to conclude that the applicant was not afforded a proper judicial review of the lawfulness of her detention. Accordingly, there has been a violation of Article 5 § 4 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 92. The applicant complained under Article 6 § 2 of the Convention that the decisions of the domestic courts extending her detention and the statement made by the Prosecutor General ’ s Office had infringed her right to the presumption of innocence. Article 6 § 2 of the Convention provides as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” Admissibility 93. The Government submitted that the applicant had not exhausted domestic remedies. Referring to her appeals against the detention orders, they argued that she had failed to raise the issue of the alleged violation of her rights under Article 6 § 2 before the domestic courts. 94. The applicant disagreed with the Government and argued that she had exhausted domestic remedies and that, even assuming that this was not the case, the Government had not demonstrated that there had been an effective remedy capable of providing redress in respect of her complaints. 95. In so far as the applicant complained of a breach of her right to the presumption of innocence by the domestic courts in their decisions of 5 and 11 December 2014 ordering and extending her pre-trial detention, the Court, having carefully examined both the original texts of the relevant decisions and their English translations procured by and relied on the applicant, finds that none of them contain any wording that could be interpreted as prematurely declaring the applicant guilty of the offences with which she was charged (see Farhad Aliyev v. Azerbaijan, no. 37138/06, § 213, 9 November 2010; Rafig Aliyev v. Azerbaijan, no. 45875/06, § 143, 6 December 2011; and Muradverdiyev v. Azerbaijan, no. 16966/06, § 96, 9 December 2010). It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 96. As to the remainder of the applicant ’ s complaint concerning the statement made by the Prosecutor General ’ s Office and the Government ’ s objection of a failure to exhaust domestic remedies in this context, the Court reiterates that it is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress directly in respect of the applicant ’ s complaints and offered reasonable prospects of success (see Mooren v. Germany [GC], no. 11364/03, § 118, 9 July 2009). 97. Turning to the present case, the Court notes that the Government did not refer to any specific provisions of domestic law or provide examples from domestic practice showing that the remedy referred to by them was available and effective in theory and in practice. Notably, they did not demonstrate that the domestic courts called upon to examine the lawfulness of the applicant ’ s pre-trial detention were able to provide appropriate redress in respect of the complaint of a breach of the presumption of innocence by the public statement of the Prosecutor General ’ s Office (compare Huseyn and Others v. Azerbaijan, nos. 35485/05 and 3 others, § 221, 26 July 2011). 98. Accordingly, the Court dismisses the Government ’ s objection and notes further that this complaint is not otherwise manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 99. The applicant maintained her complaint and argued that the impugned statement had amounted to a declaration of her guilt before she had been proved guilty according to law. 100. The Government submitted that the statement made by the Prosecutor General ’ s Office had had the aim of informing the public about the status of the criminal investigation and had not breached the applicant ’ s right to the presumption of innocence. They stressed that the statement had not depicted her as a criminal, but had rather indicated that there were reasonable grounds to suspect her of committing the acts described in the statement. 101. The Court points out that it has already found a breach of Article 6 § 2 of the Convention in a number of cases against the respondent State on account of the choice of words used by the authorities in their statements to the press which prejudged the assessment of the facts by the courts and encouraged the public to believe that the persons charged were guilty before they had been proved guilty according to law (see Ilgar Mammadov, § 127; Muradverdiyev, §§ 107-08; and Farhad Aliyev, § 225, all cited above ). 102. The same considerations apply in the circumstances of the present case, given the similar choice of words used by the Prosecutor ’ s General ’ s Office in its statement, which had been found by the Court in the above ‑ cited cases to be problematic from the standpoint of Article 6 § 2. Specifically, the title of the impugned statement in the present case indicated that the applicant ’ s “illegal acts had been unmasked ”, which amounted to a clear declaration of her guilt (see paragraph 47 above). Furthermore, it was noted in the text that “the investigation ha[d] established that T.M. attempted to commit suicide as a result of threats and pressure used by the applicant”. The Court would stress in this regard that a fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question ( see Farhad Aliyev, § 218). 103. The Court takes note of the Government ’ s submission that the purpose of the impugned statement was to inform the public about the status of the criminal investigation against the applicant and accepts that the fact that the applicant is a well-known journalist required the authorities to keep the public informed of the applicant ’ s arrest and the ensuing criminal proceedings. However, this duty to inform the public cannot justify all possible choices of words, but has to be carried out with a view to respecting the right of the suspects to be presumed innocent ( see Peša v. Croatia, no. 40523/08, § 142, 8 April 2010 ). As regards the fact that the statement ended by referring to the existence of a “ reasonable suspicion ” to charge the applicant, as highlighted by the Government, the Court notes that this wording was negated by the title of the statement and the remark mentioned above, which represented as an established fact, without any qualification or reservation, the applicant ’ s involvement in the commission of that crime (see, mutatis mutandis, Ilgar Mammadov, cited above, § 127). Moreover, the reference to the existence of a suspicion against the applicant was placed at the end of the statement, that is, when the reader may have already formed the view that the applicant had committed a crime. Thus, the overall manner in which the statement was presented left no doubt for the external reader that the applicant had committed the crime with which she was charged. Accordingly, the Court finds that the statement must have led the public to believe that the applicant was guilty before she had been proved guilty according to law. 104. There has therefore been a violation of Article 6 § 2 of the Convention. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5 105. The applicant complained under Article 18 of the Convention that her right to liberty had been restricted for purposes other than those prescribed in the Convention. Article 18 provides: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” Admissibility 106. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions 107. The applicant argued that, as in the case of Ilgar Mammadov (cited above), the specific circumstances of her case demonstrated that her arrest and pre-trial detention had been intended to punish and silence her as an investigative journalist and outspoken critic of the Azerbaijani government. She had published a number of well- researched articles revealing the government ’ s involvement in corruption and which had been widely disseminated around the world. When she had refused to stop work despite the threats she had received, the authorities had arrested and detained her on charges which had lacked any factual basis. 108. The Government, relying on Khodorkovskiy v. Russia (no. 5829/04, 31 May 2011) and Khodorkovskiy and Lebedev v. Russia (nos. 11082/06 and 13772/05, 25 July 2013), submitted that the restrictions imposed by the State in the present case had not been applied for any purpose other than that provided for by Article 5 and strictly for the proper investigation of the serious criminal offences allegedly committed by the applicant. 109. Submissions by the third parties, which pertain to the complaints under both Articles 5 and 18 of the Convention, are referred to in paragraphs 66 and 67 above. The Court ’ s assessment 110. The Court will examine the applicant ’ s complaint in the light of the relevant general principles set out by the Grand Chamber in its judgments in Merabishvili, cited above, § § 287 ‑ 317 ) and Navalnyy v. Russia ([GC], nos. 29580/12 and 4 Others, §§ 164-165, 15 November 2018). 111. Turning to the present case, the Court notes at the outset that it has already found that the applicant ’ s arrest and pre-trial detention were not carried out for the purpose prescribed by Article 5 § 1 (c) of the Convention as the charges against her were not based on a “reasonable suspicion” within the meaning of that provision. Therefore, no issue arises in the present case with respect to the plurality of purposes where a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention (compare Merabishvili, cited above, §§ 318-54). 112. However, the mere fact that the restriction of the applicant ’ s right to liberty did not pursue a purpose prescribed by Article 5 § 1 (c) is not in itself a sufficient basis to conduct a separate examination of a complaint under Article 18 unless the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case (see Merabishvili, cited above, § 291). Therefore, it remains to be seen whether there is proof that the authorities ’ actions were actually driven by an ulterior purpose. 113. The Court points out that in the case of Aliyev (cited above, §223) it found that its judgments in a series of similar cases involving the respondent State reflected a pattern of arbitrary arrest and detention of government critics, civil society activists and human rights defenders through retaliatory prosecutions and misuse of criminal law, in breach of Article 18. 114. For the reasons set out below the Court finds that the present case constitutes a part of this pattern since the combination of the relevant case ‑ specific facts in the applicant ’ s case is similar to the previous cases, where proof of an ulterior purpose derived from the lack of a reasonable suspicion being viewed against the contextual factors. 115. Firstly, as regards the applicant ’ s status, the Court notes that it is not disputed between the parties that she is a well-known investigative journalist who published a number of articles criticising members of the government and their families for alleged corruption and illegal business activities (see Khadija Ismayilova v. Azerbaijan, nos. 65286/13 and 57270/14, §§ 6-7 and §§ 162-164, 10 January 2019). 116. Secondly, the Court takes note of the fact that the applicant was initially arrested and detained based on a false claim made as a result of coercion (see paragraph 76 above). Furthermore, the chain of the events indicates that later on, when it became apparent that that the prosecuting authorities ’ actions were about to be exposed, the latter charged the applicant with additional crimes. 117. Thirdly, the Court notes that the applicant ’ s arrest was accompanied by stigmatising statements made by public officials. The Court has particular regard to the statement made by the then head of the Presidential Administration two days before her arrest, which accused her of spreading lies about members of the government. According to the author, this was “tantamount to working for the foreign secret services” and to “treason” (see paragraph 15 above). 118. Fourthly, the applicant ’ s situation cannot be viewed in isolation. Several notable human rights defenders and civil society activists have been arrested and charged to large extent with similar criminal offences in relation to the “alleged illegal activities of some non-commercial organisations” (see paragraph 8 0 cited above). 119. Thus, the totality of the above circumstances indicates that the authorities ’ actions were driven by improper reasons and that the actual purpose of the impugned measures was to silence and to punish the applicant for her journalistic activities. In the light of these considerations, the Court finds that the restriction of the applicant ’ s liberty was imposed for a purpose other than that prescribed by Article 5 § 1 (c) of the Convention. 120. There has accordingly been a violation of Article 18 of the Convention taken in conjunction with Article 5. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 121. The applicant further complained under Article 10 that her right to freedom of expression had been violated on account of her arrest, pre-trial detention and prosecution. Article 10 of the Convention provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The parties ’ submissions 122. The Government, referring to the applicant ’ s appeals against the domestic courts ’ decisions concerning her pre-trial detention, argued that she had failed to raise the issue of the alleged violation of her right under Article 10 of the Convention before the domestic courts and that the complaint should be therefore declared inadmissible for non - exhaustion of domestic remedies. 123. The applicant contested the Government ’ s argument and submitted that she had raised this issue in her applications before the domestic courts. The Court ’ s assessment 124. The Court notes that it already found a violation of Article 10 as a result of the respondent State ’ s failure to comply with its positive obligations to protect the applicant in exercise of her freedom of expression, noting also in that case her role as a well-known investigative journalist (see Khadija Ismayilova, cited above, §§ 158-166). In the present case having regard to its findings under Article 5 §§ 1 and 4 and Article 18 of the Convention with regard to the same set of facts, the Court considers that there is no need to give a separate ruling on the admissibility and the merits of the applicant ’ s complaint under Article 1 0 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 125. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 126. The applicant claimed 1 7,208.53 euros (EUR) in respect of pecuniary damage for the loss of her actual and future income. In support of her submissions, the applicant provided copies of her employment contracts and a summary of the salaries paid to her. The applicant further claimed EUR 50,000 in respect of non-pecuniary damage for the mental suffering caused by her arbitrary detention. 127. The Government submitted that the amounts claimed by the applicant were unsubstantiated and excessive. 128. The Court accepts that the applicant suffered pecuniary and non ‑ pecuniary damage as a result of the violations found (see Rasul Jafarov, cited above, § 193). However, it cannot speculate on the exact amount of salary and the benefits which she would have received if the violations of the Convention had not occurred (see Baka v. Hungary [GC], no. 20261/12, § 191, 23 June 2016 ). Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 2 0 ,000 in respect of both pecuniary and non-pecuniary damage, plus any tax that may be chargeable on this amount. Costs and expenses 129. As regards the domestic proceedings, the applicant claimed EUR 136.60 (or AZN 250) for legal fees, which was supported by the relevant invoices. She claimed a further EUR 830.52 for the travel expenses incurred by her lawyers, without providing any documents in support of this part of the claim. 130. As regards the proceedings before the Court, the applicant did not make any claim with respect to legal fees, indicating that she was represented by her lawyers on a pro bono basis. At the same time, the applicant claimed 18, 908.74 pounds sterling (GBP) (or EUR 24,414.29) for translations costs incurred in relation to the proceedings before the Court. These costs were supported by invoices produced between May 2015 and March 2016 by a translation company based in London. While the invoices did not specify the documents translated, they indicated the number of words translated at a rate of GBP 0.15 per word. According to the applicant, the translations costs were necessary due, in particular, to a large number of documents produced by the Government after notice of the case was given. 131. With respect to costs incurred at the domestic level, the Government submitted in reply that the applicant ’ s lawyers ’ travel costs were not supported by any evidence. 132. With respect to the translation costs, they submitted that the amount claimed had not been necessarily incurred and was excessive. 133. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, as far as the applicant ’ s claims for her lawyers ’ travels expenses are concerned, the Court notes it has not been shown that these expenses had been actually incurred and rejects the claim in this part. 134. As to the translation costs, the Court does not consider that those incurred before notice of the present case was given were necessary for the proceedings before the Court. As regards the remaining part of the translation costs, namely those incurred after notice of the case was given ( GBP 12,384.60 ), the Court agrees with the Government that the sums claimed appear excessive (compare, for example, Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, § 652, 13 April 2017 ). Accordingly, having regard to the documents in its possession, the Court considers it reasonable to award the total sum of EUR 5,000, plus any tax that may be chargeable on that amount. Default interest 135. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court noted in particular that one of the charges against the applicant – that she had incited a former colleague to commit suicide – was based on a false complaint made under coercion and that other charges related to her work at a radio station were not backed up by facts. It found that the material in the case file did not meet the minimum standard for the reasonableness of a suspicion required for arrest and continued detention. The applicant had therefore been deprived of her liberty in violation of Article 5 § 1 of the Convention. The Court also observed that the domestic courts had failed to verify the existence of a reasonable suspicion underpinning the applicant’s arrest and detention, despite her repeated complaints on that issue. It thus held that there had been a violation of Article 5 § 4 (review of lawfulness of detention) of the Convention. Lastly, the Court held that there had been a violation of Article 18 taken in conjunction with Article 5, finding that the authorities’ actions against the applicant, a journalist who had published articles critical of members of the Government and their families for alleged corruption and illegal business activities, had been driven by the improper reasons of silencing her and punishing her for her journalistic activity. |
Subsets and Splits