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228 | The definition of bis | II. RELEVANT DOMESTIC LAW AND OTHER MATERIALS A. Applicable legislation 22. Section VI, Chapter 30, of the 1960 Code of Criminal Procedure ( Уголовно - процессуальный кодекс РСФСР ) in force at the material time allowed certain officials to challenge a judgment which had become effective and to have the case reviewed on points of law and procedure. The supervisory review procedure (Articles 371-83 of the Code ) is distinct from proceedings in which a case is reviewed in the light of newly established facts (Articles 384-90 ). However, similar rules apply to both procedures (Article 388). 1. Date on which a judgment becomes effective 23. Under the terms of Article 356 of the Code of Criminal Procedure, a judgment takes effect and is enforceable from the date on which the appeal court renders its decision or, if no appeal has been lodged, once the time-limit for appeal has expired. 2. Grounds for supervisory review and reopening of a case Article 379 Grounds for setting aside judgments which have become effective “ The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments ( which have not taken effect ) on appeal ] ... ” Article 342 Grounds for quashing or varying judgments [on appeal] “ The grounds for quashing or varying a judgment on appeal are as follows: (i) prejudicial or incomplete investigation or pre-trial or court examination; (ii) inconsistency between the facts of the case and the conclusions reached by the court; (iii) a grave violation of procedural law; (iv) misapplication of [substantive] law; (v) discrepancy between the sentence and the seriousness of the offence or the convicted person ’ s personality. ” Article 384 Grounds for reopening cases due to new circumstances “ Judgments, decisions and rulings which have become effective may be set aside on account of newly discovered circumstances. The grounds for reopening a criminal case are as follows: (i) with regard to a judgment which has become effective, the establishment of false witness testimony or false expert opinion; forgery of evidence, investigation records, court records or other documents; or an indisputably erroneous translation which has entailed the pronouncement of an unfounded or unlawful judgment; (ii) with regard to a judgment which has become effective, the establishment of criminal abuse of their powers by judges when examining the case; (iii) with regard to a judgment which has become effective, the establishment of criminal abuse of their powers by investigation officers dealing with the case, where this has entailed the pronouncement of an unfounded or unlawful judgment or a decision to terminate the prosecution; (iv) other circumstances, unknown to the court at the time when the case was examined, which, alone or combined with other previously established facts, prove a convicted person ’ s innocence or the commission by him or her of an offence which is more or less serious than that of which he or she was convicted, or which prove the guilt of a person who was acquitted or whose prosecution was terminated. ” 3. Authorised officials 24. Article 371 of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Procurator General, the President of the Supreme Court of the Russian Federation or their respective deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of those officials for a review. 4. Limitation period 25. Article 373 of the Code of Criminal Procedure set a limitation period of one year during which a request calling for the supervisory review of an acquittal could be brought by an authorised official. The period ran from the date on which the acquittal took effect. 5. The effect of a supervisory review on acquittals 26. Under Articles 374, 378 and 380 of the Code of Criminal Procedure, a request for supervisory review was to be considered by the judicial board ( the Presidium ) of the competent court. The court could examine the case on the merits and was not bound by the scope and grounds of the request for supervisory review. 27. The Presidium could dismiss or grant the request. If it dismissed the request, the earlier judgment remained in force. If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, to order a fresh court examination at any instance, to uphold a first - instance judgment reversed on appeal, or to vary or uphold any of the earlier judgments. 28. Article 380 § § 2 and 3 provided that the Presidium could, in the same proceedings, reduce a sentence or amend the legal classification of a conviction or sentence to the defendant ’ s advantage. If it found a sentence or legal classification to be too lenient, it was obliged to remit the case for a new examination. 29. On 1 July 2002 a new Code of Criminal Procedure came into force. Under Article 405, the application of supervisory review is limited to those cases where it does not involve changes that would be detrimental to the convicted person. Acquittals and decisions to discontinue the proceedings may not be the subject of a supervisory review. B. Relevant materials 30. On 19 January 2000, at the 694 th meeting of the Ministers ’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights. The recommendation encouraged the Contracting Parties to examine their national legal systems with a view to ensuring that there existed adequate possibilities to re - examine the case, including the reopening of proceedings, in instances where the Court had found a violation of the Convention. THE LAW I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 31. The applicant contended that the supervisory review proceedings which took place after his final acquittal constituted a violation of his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted. He alleged that, at the least, he was liable to be tried again on the same charges, since the very fact of the Procurator General ’ s lodging a request for supervisory review created the potential for a new prosecution. He relied on Article 4 of Protocol No. 7 to the Convention, the relevant parts of which provide: “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. ... ” A. The parties ’ submissions 32. The Government considered that, for the purposes of Article 4 of Protocol No. 7, the supervisory review proceedings did not constitute a second trial. They contended that the domestic law at the material time did not permit the supervisory instance to convict the applicant, but only to quash the previous judgments and to remit the case for fresh examination in adversarial proceedings. In support of their position, they referred to the Constitutional Court ’ s ruling of 17 July 2002 in the applicant ’ s case. The Government submitted that the applicant ’ s acquittal could not be said to have been invalidated or suspended at any time, given that the Procurator General ’ s request was dismissed by the Presidium. 33. The Government further pointed out that, following the recent change in the legislation, final acquittals could no longer be challenged by way of supervisory review, and other judgments could not be challenged by way of supervisory review if they would be detrimental to a convicted person. 34. The applicant contested the Government ’ s position and submitted that, contrary to the non bis in idem principle, the Procurator General ’ s request had made him liable to be tried again for an offence of which he had been finally acquitted. Although the outcome remained unchanged, he had effectively been prosecuted twice for the same offence. He claimed that the supervisory review was not justified as an exceptional reopening ‑ permitted by the second paragraph of Article 4 of Protocol No. 7 ‑ because the Presidium had established no fundamental defect in previous proceedings which would require a re -examination of the case. B. The Court ’ s assessment 35. The Court notes that the protection against duplication of criminal proceedings is one of the specific safeguards associated with the general guarantee of a fair hearing in criminal proceedings. It reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see, among other authorities, Gradinger v. Austria, judgment of 23 October 1995, Series A no. 328-C, p. 65, § 53). The Court further notes that the repetitive aspect of trial or punishment is central to the legal problem addressed by Article 4 of Protocol No. 7. In Oliveira v. Switzerland (judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V), the fact that the penalties in the two sets of proceedings were not cumulative was relevant to the finding that there was no violation of the provision where two sets of proceedings were brought in respect of a single act ( p. 1998, § 27). 36. Turning to the supervisory review of an acquittal conducted in circumstances such as the present case, the Court will first determine what elements, if any, of Article 4 of Protocol No. 7 are to be found in such proceedings. For this purpose, it will have regard to the following aspects : – whether there had been a “final” decision before the supervisory instance intervened, or whether the supervisory review was an integral part of the ordinary procedure and itself provided a final decision; – whether the applicant was “tried again” in the proceedings before the Presidium; and – whether the applicant became “liable to be tried again” by virtue of the Procurator General ’ s request. Finally, the Court will consider whether, in the circumstances of the case, the supervisory review could in principle have given rise to any form of duplication of the criminal proceedings, contrary to the protection afforded by Article 4 of Protocol No. 7. 1. Whether the applicant had been “ finally acquitted” prior to the supervisory review 37. According to the explanatory report to Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a “decision is final ‘ if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them ’ ”. 38. The Court notes that the procedural law at the time allowed certain officials to challenge a judgment which had taken effect. The grounds for supervisory review were the same as for lodging an ordinary appeal. With regard to acquittals, the request for supervisory review could be lodged within one year of the judgment ’ s taking effect. Assuming that the Presidium granted the Procurator General ’ s request and that the proceedings were relaunched, the ensuing ruling would still constitute the only decision in the applicant ’ s criminal case, with no other decision remaining concurrently in force, and that decision would be “final”. Thus, it appears that the domestic legal system in Russia at the time did not regard decisions such as the acquittal in the present case as “final” until the time-limit for making an application for supervisory review had expired. On that basis, the decision by the Presidium of the Supreme Court on 13 September 2000 not to accept the case for supervisory review would be the “final” decision in the case. On such an interpretation, Article 4 of Protocol No. 7 would have no application whatsoever in the present case, as all the decisions before the Court related to the same single set of proceedings. 39. However, the Court reiterates that a supervisory request for annulment of a final judgment is a form of extraordinary appeal in that it is not directly accessible to the defendant in a criminal case, and its application depends on the discretion of authorised officials. The Court has, for example, not accepted that supervisory review is an effective domestic remedy in either the civil or the criminal contexts ( see Tumilovich v. Russia (dec.), no. 47033/99, 22 June 1999, and Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II ), and it has found that the quashing of a judgment on supervisory review can create problems as to the legal certainty to be afforded to the initial judgment (see Brumărescu v. Romania [GC], no. 28342/95, § 62, ECHR 1999-VII, and Ryabykh v. Russia, no. 52854/99, §§ 56-58, ECHR 2003-IX ). The Court will therefore assume in the following paragraphs that the appeal judgment of 17 April 2000, by which the applicant ’ s acquittal became final on that same date, was the “final decision” for the purposes of Article 4 of Protocol No. 7. 2. Whether the applicant was “ tried again ” in the proceedings before the Presidium 40. The Court observes that the Procurator General ’ s request for supervisory review of the acquittal was examined by the Presidium. Its determination was limited, at that stage, to the question whether to grant the request for supervisory review. In the circumstances of the present case, the Presidium did not accept the application for review, and the final decision remained that of 17 April 2000. 41. It follows that the applicant was not “tried again ” within the meaning of Article 4 § 1 of Protocol No. 7 in the proceedings by which the Presidium of the Supreme Court rejected the Procurator General ’ s request for supervisory review of the applicant ’ s acquittal. 3. Whether the applicant was “ liable to be tried again ” 42. The Court has further considered whether the applicant was “liable to be tried again ”, as he alleged. It notes that, had the request been granted, the Presidium would have been required, by Article 380 of the Code of Criminal Procedure in force at the time, to choose one of the options set out in paragraph 27 above. Importantly, the Presidium was not empowered to make a new determination on the merits in the same proceedings, but merely to decide whether or not to grant the Procurator General ’ s request. 43. It appears therefore that the potential for resumption of proceedings in this case would have been too remote or indirect to constitute “ liability ” for the purposes of Article 4 § 1 of Protocol No. 7. 44. Although the elements discussed in paragraphs 40 to 43 above are in themselves sufficient to demonstrate that supervisory review in this case did not lead to a violation of Article 4 of Protocol No. 7, the Court notes that there exists a substantive, and thus more important, reason to reach the same conclusion. It considers that the crucial point in this case is that supervisory review could not in any event have given rise to a duplication of criminal proceedings, within the meaning of Article 4 § 1 of Protocol No. 7, for the following reasons. 45. The Court observes that Article 4 of Protocol No. 7 draws a clear distinction between a second prosecution or trial, which is prohibited by the first paragraph of that Article, and the resumption of a trial in exceptional circumstances, which is provided for in its second paragraph. Article 4 § 2 of Protocol No. 7 expressly envisages the possibility that an individual may have to accept prosecution on the same charges, in accordance with domestic law, where a case is reopened following the emergence of new evidence or the discovery of a fundamental defect in the previous proceedings. 46. The Court notes that the Russian legislation in force at the material time permitted a criminal case in which a final decision had been given to be reopened on the grounds of new or newly discovered evidence or a fundamental defect (Articles 384-90 of the Code of Criminal Procedure). This procedure obviously falls within the scope of Article 4 § 2 of Protocol No. 7. However, the Court notes that, in addition, a system also existed which allowed the review of a case on the grounds of a judicial error concerning points of law and procedure (supervisory review, which is governed by Articles 371-83 of the Code of Criminal Procedure ). The subject matter of such proceedings remained the same criminal charge and the validity of its previous determination. If the request was granted and the proceedings were resumed for further consideration, the ultimate effect of supervisory review would be to annul all decisions previously taken by courts and to determine the criminal charge in a new decision. To this extent, the effect of supervisory review is the same as reopening, because both constitute a form of continuation of the previous proceedings. The Court therefore concludes that for the purposes of the non bis in idem principle supervisory review may be regarded as a special type of reopening falling within the scope of Article 4 § 2 of Protocol No. 7. 47. The applicant ’ s argument that the supervisory review was unnecessary and amounted to an abuse of process is not relevant to the question of compliance with Article 4 of Protocol No. 7: the manner in which the power was exercised is relative to the overall fairness of criminal proceedings, but cannot be decisive for the purpose of identifying the procedure as a “ reopening ” as opposed to a “second trial”. On the facts of the present case, the proceedings aimed at securing a supervisory review were an attempt to have the proceedings reopened rather than an attempted “second trial”. 48. Finally, the Court notes that the conformity with the requirement of lawfulness under Article 4 § 2 of Protocol No. 7 is undisputed in the present case. 49. The Court concludes that the applicant was not liable to be tried or punished again within the meaning of Article 4 § 1 of Protocol No. 7 to the Convention, and that accordingly there has been no violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 50. The applicant maintained that the supervisory review proceedings conducted after his final acquittal constituted a violation of his right to a fair trial. He relied on Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. The parties ’ submissions 51. In their post-admissibility submissions, the Government stated that the supervisory review proceedings did not constitute a new examination of the applicant ’ s criminal charge because the request to quash the acquittal lodged by the Procurator General had been dismissed by the Presidium of the Supreme Court without examining the merits. They informed the Court that, just as Article 380 § 2 of the Code of Criminal Procedure prohibited the Presidium from increasing a sentence or changing a legal classification to a more serious one without remitting the case for new examination, the Presidium itself was unable to replace an acquittal with a conviction while simultaneously granting the request for reopening. They also claimed that, since the supervisory review proceedings had no adverse impact on the applicant ’ s final acquittal, they could not have constituted a violation of the applicant ’ s right to a fair hearing within the meaning of Article 6 § 1 of the Convention. 52. The Government pointed out that the supervisory review in the present case had been conducted in accordance with the procedure prescribed by law. In particular, the Procurator General ’ s request had been lodged within one year of the acquittal taking effect. 53. The applicant disputed those submissions and maintained that the very possibility of challenging the final and enforceable acquittal had violated his right to a fair trial. He stated that, although the supervisory review had complied with the formal requirements imposed by law at the material time, it had not been necessary. He claimed that, in the circumstances of the case, the Procurator General ’ s call for supervisory review proceedings had clearly been an abuse of process and incompatible with the Convention principles. B. The Court ’ s assessment 54. The Court has found above that the supervisory review in this case was compatible with the non bis in idem principle enshrined in Article 4 of Protocol No. 7, which is itself one aspect of a fair trial. The mere fact that the institution of supervisory review as applied in the present case was compatible with Article 4 of Protocol No. 7 is not, however, sufficient to establish compliance with Article 6 of the Convention. The Court must determine its compatibility with Article 6 independently of its conclusion under Article 4 of Protocol No. 7. 55. In particular, the Court reiterates that it has previously held that the institution of supervisory review can give rise to problems of legal certainty, as judgments in civil cases remained open to review indefinitely, on relatively minor grounds (see Brumărescu and Ryabykh, both cited above). The position regarding criminal cases is somewhat different, at least in so far as acquittals are concerned, as a review could only be requested during a period of one year following the date of the acquittal in question. 56. Moreover, the Court observes that the requirements of legal certainty are not absolute. In criminal cases, they must be assessed in the light of, for example, Article 4 § 2 of Protocol No. 7, which expressly permits a State to reopen a case due to the emergence of new facts, or where a fundamental defect is detected in the previous proceedings, which could affect the outcome of the case. The possibility of re-examining or reopening cases was also considered by the Committee of Ministers as a guarantee of restitution, particularly in the context of the execution of the Court ’ s judgments. In its Recommendation No. R (2000) 2 on the re - examination or reopening of certain cases at the domestic level following judgments of the European Court of Human Rights, it urged member States to ensure that their domestic legal systems provided for a procedure whereby a case could be re - examined or reopened. 57. The mere possibility of reopening a criminal case is therefore prima facie compatible with the Convention, including the guarantees of Article 6. However, certain special circumstances of the case may reveal that the actual manner in which it was used impaired the very essence of a fair trial. In particular, the Court has to assess whether, in a given case, the power to launch and conduct a supervisory review was exercised by the authorities so as to strike, to the maximum extent possible, a fair balance between the interests of the individual and the need to ensure the effectiveness of the system of criminal justice. 58. The Court attaches particular weight to the argument that, in the applicant ’ s case, the Presidium was indeed only deciding the question whether the case was to be reopened or not. Had it quashed the acquittal, this would necessarily have entailed a separate set of adversarial proceedings on the merits before the competent courts. The decision by the Presidium thus marked a procedural step which was no more than a precondition to a new determination of the criminal charge. The Court notes that the Presidium of the Supreme Court dismissed the Procurator General ’ s request, having found that it relied on defects which it had been entirely within the prosecution ’ s control to redress before, not after, the final judgment. The Procurator General ’ s request could itself be criticised as being arbitrary and an abuse of process. However, it had no decisive impact on the fairness of the procedure for reopening as a whole, which was primarily a matter for the Presidium ’ s deliberation (see, mutatis mutandis, Voloshchuk v. Ukraine (dec.), no. 51394/99, 14 October 2003, and Sardin v. Russia (dec.), no. 69582/01, ECHR 2004 -II ). Accordingly, the arbitrariness of the Procurator General ’ s request for a reopening could not be, and was not, prejudicial for the determination of the criminal charges in the present case. 59. The Court concludes that the authorities conducting the supervisory review in the present case did not fail to strike a fair balance between the interests of the applicant and the need to ensure the proper administration of justice. 60. As to the proceedings before the Presidium of the Supreme Court, their outcome was favourable to the applicant and he cannot therefore claim to be a victim of a violation of his right to a fair hearing in respect of those proceedings. Moreover, according to the established case-law of the Convention organs, Article 6 does not apply to proceedings concerning a failed request to reopen a case. Only the new proceedings, after the reopening has been granted, can be regarded as concerning the determination of a criminal charge (see, inter alia, X v. Austria, no. 7761 / 77, Commission decision of 8 May 1978, Decisions and Reports (DR) 14, p. 171 at p. 174, and Ruiz Mateos and Others v. Spain, no. 24469/94, Commission decision of 2 December 1994, DR 79 -B, p. 141). 61. Accordingly, the Court finds no violation of Article 6 § 1 of the Convention. | The Court noted that, in the event that supervisory review of the acquittal had been granted, a new decision that would have been “final” could have resulted. Nevertheless, given the extraordinary nature of a supervisory review appeal and the problems of legal certainty that a quashing of a judgment in such proceedings could create, the Court assumed that the judgment of the Supreme Court upholding the applicant’s acquittal had been the “final decision” for the purposes of this provision. In the present case, the applicant had not been “tried again” in the proceedings before the Presidium, nor had he been “liable to be tried again”, as these proceedings were limited to the question whether or not to grant the request for review. As the Presidium was not empowered to make a new determination on the merits, it appeared that the potential for a resumption of the proceedings in this case was too remote or indirect to constitute a “liability” within the meaning of this Article. Moreover, had the request been granted and proceedings resumed, the ultimate effect of supervisory review would have been to annul all previous decisions and to determine a criminal charge in a new decision, which would not have represented a duplication of proceedings. Hence, supervisory review could be regarded as an attempt to reopen proceedings, which was permitted under the second paragraph of Article 4 of Protocol No. 7, and not an attempted “second trial”. The Court therefore held that there had been no violation of Article 4 of Protocol No. 7. |
6 | Conditions of detention | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Detention of aliens who have crossed the border illegally 32. Under section 102 (1) (10) of the Ministry of Internal Affairs Act 2014, the border police may detain aliens who have not complied with the border crossing regime in pre-trial detention facilities or special immigration detention facilities. B. Detention of minor aliens 33. Under section 44(9) of the Aliens Act 1998, as amended in 2013, accompanied minor aliens may exceptionally be detained, pending their removal, for a period of three months, but the detention facilities in which they are placed must have special premises adapted to their age and needs. Unaccompanied minor aliens may not be detained in detention facilities for aliens. C. Damages for poor conditions of detention 34. By section 1(1) of the State and Municipalities Liability for Damage Act 1988, the State is liable for damage suffered by individuals or legal persons as a result of unlawful decisions, actions or omissions undertaken by State or municipal authorities or civil servants in the course of or in connection with administrative action. 35. Between 2003 and 2017, convicts and pre-trial detainees routinely claimed damages under this provision with respect to the conditions of their detention (see Neshkov and Others v. Bulgaria, nos. 36925/10 and 5 others, § § 127 -31, 27 January 2015 ). 36. By contrast, there is only one reported case relating to conditions in detention facilities for aliens. It was brought in 2010 by a Turkish national kept in an immigration detention facility in Sofia for thirteen days in 2009. The Sofia City Administrative Court found the claim admissible but unproven (see реш. № 2847 от 10.06.2011 г. по адм. д. № 6036/2010 г., АдмС-София-град ). The Supreme Administrative Court upheld the judgment on the same basis (see реш. № 14967 от 16.11.2011 г. по адм. д. № 9889/2011 г., ВАС, III о. ). 37. Following the Court ’ s pilot judgment in Neshkov and Others (cited above ), in October 2016 the Government introduced in Parliament a bill to amend the Execution of Punishments and Pre- trial Detention Act 2009 and create two dedicated preventive and compensatory remedies in respect of inhuman or degrading conditions of detention in correctional and pre-trial detention facilities. The bill was enacted and came into force on 7 February 2017 (see Atanasov and Apostolov v. Bulgaria ( dec. ), nos. 65540/16 and 22368/17, §§ 12 -28, 27 June 2017). D. Claims for damages against the State Agency for Refugees in relation to the allegedly slow processing of applications for international protection 38. In several cases aliens kept in immigration detention brought claims under section 1(1) of the 1988 Act ( see paragraph 34 above ) against the State Agency for Refugees, alleging that their detention had been unduly prolonged because the Agency had failed to process their applications for international protection in a timely manner. In one such case, in determining the quantum of the award of non-pecuniary damages, the Sofia City Administrative Court held, by reference to this Court ’ s case-law, that it should not be too strict in requiring detained asylum-seekers to prove that they had suffered mentally as a result of their unduly prolonged decision (see реш. № 4059 от 17.06.2013 г. по адм. д. № 3527/2013 г., АдмС ‑ София-град ). Its judgment was, however, reversed on appeal by the Supreme Administrative Court, which held, inter alia, that it had erred in doing so. On that point, it had to abide by the domestic rules of procedure, which required full proof in that respect and could not be disregarded simply because this Court had in some cases found their application unduly formalistic (see реш. № 75 от 05.01.2015 г. по адм. д. № 10659/2013 г., ВАС, III о. ). That judgment was fully in line with all other judgments of the Supreme Administrative Court in similar cases against the State Agency for Refugees in which the court likewise insisted on the submission of specific proof of non-pecuniary damage (see реш. № 8294 от 18.06.2014 г. по адм. д. № 876/2014 г., ВАС, III о.; реш. № 9035 от 30.06.2014 г. по адм. д. № 2577/2014 г., ВАС, III о.; реш. № 11766 от 0 7.10.2014 г. по адм. д. № 2575/2014 г., ВАС, III о.; and реш. № 2454 от 0 9.03.2015 г. по адм. д. № 6512/2014 г., ВАС, III о. ). III. RELEVANT STATISTICAL DATA 39. According to data published by Eurostat, in 2014 672,215 third ‑ country nationals were found to be illegally present on the territory of Member States of the European Union. The numbers for 2015 and 2016 were respectively 2,154,675 people and 983,860 people. 40. The respective numbers for Greece and Hungary, States which sit, respectively, on the south-eastern border of the European Union and on the south-eastern border of the main Schengen Area, were as follows. For Greece, they were 73,670 people in 2014, 911,470 people in 2015, and 204,820 people in 2016. For Hungary, they were 56,170 people in 2014, 424,055 people in 2015, and 41,560 people in 2016. 41. For Bulgaria, the respective numbers were 12,870 people in 2014, 20,810 people in 2015, and 14,125 people in 2016. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 42. The applicants alleged that the conditions of their immigration detention had subjected the three minors – the third, fourth and fifth applicants – to inhuman and degrading treatment. They relied on Article 3 of the Convention, which provides : “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Scope of the complaint 43. The Government submitted that the applicants had not complained in relation to the conditions in the immigration detention facility in Sofia, and that their complaint only concerned the conditions in the border police ’ s detention facility in Vidin. 44. The applicants replied that their complaint concerned the time from about 5 p.m. on 17 August 2015, when they had been arrested, until about 11 a.m. on 19 August 2015, when they had left the border police ’ s detention facility in Vidin. 45. In the light of the parties ’ submissions, the Court finds that the complaint only concerns the conditions in the border police ’ s detention facility in Vidin. B. Admissibility 1. Exhaustion of domestic remedies (a) The parties ’ submissions 46. The Government submitted that aliens held in immigration detention could obtain damages under section 1(1) of the 1988 Act (see paragraph 34 above) with respect to the conditions of that detention. That remedy was capable of offering sufficient redress to those no longer in custody. The Government were, however, not aware of any such claims. Detained aliens preferred to claim damages with respect to alleged delays in the processing by the State Agency for Refugees of their applications for international protection. The Government quoted extensively the first-instance judgment mentioned in paragraph 38 above, and on that basis argued that it was clear that a claim relating to the conditions in which the third, fourth and fifth applicant had been kept would have been examined in line with Convention standards. Another argument in that respect was that following the case of Neshkov and Others v. Bulgaria (nos. 36925/10 and 5 others, 27 January 2015), the Bulgarian courts ’ case-law had evolved, affording a greater efficacy to the remedy specified under section 1(1) of the 1988 Act. The applicants, who had had access to interpreters and lawyers from a non ‑ governmental organisation during their stay in the immigration detention facility in Sofia, had been in practice capable of resorting to that remedy. Yet, they had not done so. 47. The applicants did not comment on that point. (b) The Court ’ s assessment 48. It is not in doubt that the applicants could have brought a claim for damages under section 1(1) of the 1988 Act ( see paragraph 34 above ) in relation to the conditions in which the three minors – the third, fourth and fifth applicants – had been kept in the border police ’ s detention facility in Vidin. The practical difficulties owing to their being foreigners who do not speak Bulgarian does not exempt them from the requirement of Article 35 § 1 of the Convention to exhaust domestic remedies (see Choban v. Bulgaria ( dec. ), no. 48737/99, 23 June 2005; Demopoulos and Others v. Turkey ( dec. ) [GC], nos. 46113/99 and 7 others, § 101, ECHR 2010; and Djalti v. Bulgaria, no. 31206/05, § 75, 12 March 2013 ). 49. Nor is it open to question that, after the end of the applicants ’ detention – which came more than five months before they lodged their application (see paragraphs 1 and 30 above) – the damages which they could have obtained as a result of such a claim would have amounted to adequate redress for their grievance (see A.F. v. Greece, no. 53709/11, § § 53-54, 13 June 2013; Housein v. Greece, no. 71825/11, § § 55-56, 24 October 2013; de los Santos and de la Cruz v. Greece, nos. 2134/12 and 2161/12, § § 32-33, 26 June 2014; and Mohamad v. Greece, no. 70586/11, § 50, 11 December 2014 ). 50. The only point at issue is whether such a claim would have been reasonably likely to succeed at the time when the applicants lodged their application – February 2016 (see paragraph 1 above). 51. Since about 2003, claims under section 1(1) of the 1988 Act have been the usual way in Bulgaria to seek damages with respect to poor conditions in correctional and pre-trial detention facilities ( see Neshkov and Others, cited above, §§ 127 -31 ). In several decisions and judgments given in 2008 - 10, the Court found that they were an effective ex post facto remedy with respect to complaints under Article 3 of the Convention in such cases (ibid., § 192, with further references ). 52. Inasmuch as section 1(1) of the 1988 Act lays down a general rule governing the liability of the authorities in relation to administrative action, there is no reason why it could not also apply with respect to conditions in immigration detention facilities ( compare, mutatis mutandis, the statutory provisions at issue in A.F. v. Greece, §§ 55-61; Housein, §§ 57-62; and de los Santos and de la Cruz, §§ 34-36, all cited above; also contrast the provisions at issue in Rahimi v. Greece, no. 8687/08, § 76, 5 April 2011). However, with one exception in 2010-11 – a case in which the claim, though admitted for examination, failed on its facts (see paragraph 36 above ) – aliens kept in immigration detention in Bulgaria do not appear to have resorted to claims under that provision to seek redress for poor conditions of detention. Even so, in 2013 the Court noted that, although the Bulgarian courts ’ case-law regarding conditions of detention under that provision had initially developed in relation to correctional and pre-trial detention facilities, it had, as demonstrated by that case, also been applied in relation to immigration detention facilities. The Court went on to say that if there was doubt regarding whether a remedy was likely to succeed, it had to be attempted, and on that basis concluded that by not bringing such a claim an alien aggrieved by the conditions in which he had been kept in an immigration detention facility in Sofia had failed to exhaust domestic remedies (see Djalti, cited above, §§ 73, 74 and 76 ). 53. However, in 20 15, in the light of information that – owing to the way in which the Bulgarian administrative courts approached conditions ‑ of ‑ detention claims lodged by convicts and pre-trial detainees under section 1(1) of the 1988 Act – that remedy was not operating well in practice, the Court found that it was not effective or offering a reasonable prospect of success in such cases ( see Neshkov and Others, cited above, §§ 194-206). It went on to hold that Bulgaria had to make available effective compensatory and preventive remedies in respect of allegedly inhuman and degrading conditions in correctional and pre-trial detention facilities (ibid., §§ 279-89). 54. As a result, at the proposal of the Government, in early 2017 the Bulgarian Parliament amended the Execution of Punishments and Pre-Trial Detention Act 2009, introducing preventive and compensatory remedies specifically designed to provide redress in respect of inhuman or degrading conditions in correctional and pre-trial detention facilities (see paragraph 37 above). In June 2017 the Court held that those remedies could be seen as effective (see Atanasov and Apostolov v. Bulgaria ( dec. ), nos. 65540/16 and 22368/17, §§ 44- 68, 27 June 2017 ). 55. The question now facing the Court is whether its findings in Neshkov and Others (cited above, §§ 130-36, 194-206), which highlighted emerging problems in the operation of the remedy under section 1(1) of the 1988 Act, should prompt it to revisit its earlier ruling in Djalti (cited above, §§ 73, 74 and 76) and hold that, at the time when the applicants lodged this application – February 2016 ( see paragraph 1 above ) – a claim for damages under that provision was not a remedy offering a reasonable prospect of success with respect to aliens complaining of the conditions of their immigration detention. 56. It appears that, since the Court ’ s judgment in the case of Djalti (cited above) in 2013, no aliens have brought such claims. There is thus no direct evidence on the point – a state of affairs for which the Government cannot be blamed (see Mahamed Jama v. Malta, no. 10290/13, § 63, 26 November 2015; Moxamed Ismaaciil and Abdirahman Warsame v. Malta, nos. 52160/13 and 52165/13, § 48, 12 January 2016; and Abdi Mahamud v. Malta, no. 56796/13, § 52, 3 May 2016 ). There are, however, three reasons which, in this case, compel the conclusion that in February 2016 such a claim would not have been reasonably likely to succeed. 57. First, some of the issues noted in Neshkov and Others (cited above, §§ 194-206 ) – (a) that in such cases the Bulgarian administrative courts applied the rule that the burden of proof lies on the party making an allegation in a very strict way; (b) that they often did not take into account the general prohibition on inhuman or degrading treatment but only had regard to the concrete statutory or regulatory provisions governing conditions of detention; and (c) that they often failed to recognise that inhuman or degrading conditions of detention must be presumed to cause non-pecuniary damage – are not exclusive to cases relating to conditions in correctional and pre-trial detention facilities; they can also affect cases concerning conditions in immigration detention facilities. 58. Secondly, the Government ’ s assertion that the evolution of the Bulgarian administrative courts ’ case-law in conditions-of-detention cases between the Court ’ s judgment in Neshkov and Others (cited above) in January 2015 and February 2016 had again rendered the remedy under section 1(1) of the 1988 Act effective is – quite apart from its not being supported by any examples – hard to reconcile with their opting in October 2016 to propose the introduction of a dedicated remedy in that respect, which was put in place by way of a special legislative amendment (see paragraph 37 above). 59. Lastly, the example whereby the Government sought to substantiate their assertion that the Bulgarian administrative courts generally examined claims by aliens under section 1(1) of the 1988 Act in relation to their immigration detention in a manner that was in line with Convention standards does not stand up to scrutiny. It cannot be overlooked that the first-instance judgment cited by them had been quashed on appeal, with the Supreme Administrative Court, in line with its settled case-law on the point, criticising the lower court for having disregarded the strictures of domestic evidentiary rules by reference to rulings of this Court (see paragraph 38 above, and contrast, mutatis mutandis, Posevini v. Bulgaria, no. 63638/14, § 55, 19 January 2017 ). 60. The Government ’ s objection cannot therefore be allowed. 2. Alleged abuse of the right of individual application (a) The parties ’ submissions 61. The Government submitted that the applicants – by failing to mention in their application to the Court the applications for international protection which they had made in Bulgaria, or to inform the Court of the unfolding of the proceedings pursuant to their applications for international protection in Switzerland – had attempted to mislead the Court and had thus abused their right to an individual application. It could be presumed that they had used their application to the Court to support their legal challenges against the Swiss authorities ’ decision to transfer them back to Bulgaria. 62. The applicants did not make submissions in respect of that point. (b) The Court ’ s assessment 63. The submission by applicants of incomplete information may amount to “ an abuse of the right of individual application ” within the meaning of Article 35 § 3 (a) of the Convention, especially if the information concerns the core of the case or essential evidence, and the failure to disclose it has not been sufficiently explained. A failure on the applicant ’ s part to bring to the Court ’ s attention important developments taking place during the proceedings may also constitute such abuse (see S.A.S. v. France [GC], no. 43835/11, § 67, 1 July 2014, and Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references ). 64. In this case, the only relevant complaint was under Article 3 of the Convention in respect of Bulgaria of the conditions of the third, fourth and fifth applicants ’ detention. In their application, they gave a detailed description of the facts relating to that complaint. The information about their applications for international protection in Bulgaria and Switzerland and the way in which these had been dealt with ( see paragraphs 30 and 31 above ) does not relate to it. That information would have been relevant if the applicants had also complained in respect of Bulgaria of their possible removal to their country of origin, or in respect of Switzerland of the Swiss authorities ’ intention to transfer them back to Bulgaria under the Dublin III Regulation. But they did not (contrast M.S.S. v. Belgium and Greece [GC], no. 30696/09, § § 362-68, ECHR 2011; Tarakhel v. Switzerland [GC], no. 29217/12, § § 53-122, ECHR 2014 (extracts); and A.S. v. Switzerland, no. 39350/13, § § 15-38, 30 June 2015 ). Their alleged failure to keep the Court fully apprised of those developments does not therefore raise an issue under Article 35 § 3 (a) of the Convention. 65. Even if the applicants applied to the Court not just in order to vindicate their rights under Article 3 of the Convention but also with a view to using the proceedings to bolster their applications for international protection in Switzerland, that does not mean that their application was abusive (see, mutatis mutandis, Loizidou v. Turkey (preliminary objections), 23 March 1995, § 45, Series A no. 310; Foti and Others v. Italy, nos. 7604/76 and 3 others, Commission decision of 11 May 1978, Decisions and Reports (DR) c 14, p. 140, at p. 143; and McFeeley and Others v. the United Kingdom, no. 8317/78, Commission decision of 15 May 1980 DR 20, p. 44, at p. 70 ). The term “abuse of [a] right”, as used in Article 35 § 3 (a) of the Convention, must be understood in its ordinary meaning – namely, the harmful exercise of a right by its holder in a manner inconsistent with the purpose for which it has been granted (see S.A.S. v. France, cited above, § 66, which cites Miroļubovs and Others v. Latvia, no. 798/05, § 62, 15 September 2009). There is nothing to suggest that the applicants have sought to deflect the proceedings before the Court towards an end inconsistent with their real purpose. 66. There are therefore no grounds to find the application abusive under Article 3 5 § 3 (a) of the Convention. 3. Conclusion as to the admissibility of the complaint 67. The Government submitted that since the applicants had been treated in a manner fully in line with the applicable rules and since the authorities had taken into account their heightened vulnerability, the complaint was manifestly ill-founded. 68. The applicants maintained their allegations. 69. The Court cannot agree with the Government that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on other grounds. It must therefore be declared admissible. C. Merits 1. The video evidence submitted by the applicants (a) The parties ’ submissions 70. The Government argued that the video submitted by the applicants, which would not be admissible in domestic proceedings, could not serve as proper evidence in these proceedings either. It was impossible to establish the precise date and time when it had been shot, and its quality was very poor. It had obviously been created with a view to being used as evidence, and it was well known that video footage could easily be manipulated. One could not hear Bulgarian being spoken on it, see any objects featuring the Cyrillic script, or be certain that the premises featuring in it were in fact those of the border police ’ s detention facility in Vidin. Indeed, it was unclear whether it had even been shot in Bulgaria. 71. The applicants gave explanations about the circumstances in which they had recorded and then copied the video ( see paragraph 17 above ). (b) The Court ’ s assessment 72. According to its settled case-law, the Court is free to assess not only the admissibility and relevance but also the probative value of each item of evidence before it (see Ireland v. the United Kingdom, 18 January 1978, § 210, Series A no. 25, and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 208, ECHR 2013 ). It is not bound by procedural barriers to the admissibility of evidence, and adopts the conclusions supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII, and, in relation specifically to the detention of minors migrants, Rahimi, cited above, § 64 ). These points reflect the well ‑ established principle of international law that international courts are not bound by domestic evidentiary rules (see, in relation specifically to the Court, Al Nashiri v. Poland, no. 28761/11, § 23, 24 July 2014, and Husayn (Abu Zubaydah ) v. Poland, no. 7511/13, § 21, 24 July 2014 ). 73. Indeed, the Court has already relied on video evidence, not only in other contexts ( see, for example, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § § 10, 91 and 176, ECHR 2000- VIII; Giuliani and Gaggio v. Italy [GC], no. 23458/02, § § 9, 139 and 185, ECHR 2011 (extracts); and Sargsyan v. Azerbaijan [GC], no. 40167/06, § § 11, 56, 61, 70 and 133, ECHR 2015 ), but also specifically with a view to establishing the conditions of detention of minor migrants (see Mahmundi and Others v. Greece, no. 14902/10, § § 60 and 64, 31 July 2012 ). It has even asked respondent Governments to provide video evidence in cases concerning conditions of detention (see Alimov v. Turkey, no. 14344/13, § 76, 6 September 2016 ), and has drawn inferences from their failure to do so (see Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, § § 172 and 175, 1 July 2010) or from the applicants ’ failure to rebut photographic evidence submitted by the respondent Government in cases relating to conditions of immigration detention (see Tehrani and Others v. Turkey, nos. 32940/08 and 2 others, § 89, 13 April 2010, and Erkenov v. Turkey, no. 18152/11, § 38, 6 September 2016 ). It therefore finds that it can take into account the video evidence submitted by the applicants in this case. 74. As regards the reliability of that evidence, it should be noted that the two video files submitted by the applicants bore time stamps which dated from not long after the time of their detention in Bulgaria (see paragraph 16 above). In view of the applicants ’ explanations on that point ( see paragraph 17 above ), and since it is well known that electronic files can be automatically re-dated when copied from one device to another, the Court finds that the time stamps on the two video files do not throw doubt on their authenticity. The footage is, for its part, sufficiently clear, and there are no signs that it has been manipulated. Indeed, the Bulgarian authorities confirmed that the people featuring on it were the applicants ( see paragraph 18 above ). It is true that there are no elements in the video – such as text written in Cyrillic or words spoken in Bulgarian – which could enable the Court positively to ascertain that it was recorded inside the border police ’ s detention facility in Vidin where the applicants were held. At the same time, there are no elements which suggest otherwise. In these circumstances, the mere expression of misapprehensions by the Government on that point cannot cause the Court to doubt that the video depicts, as asserted by the applicants, that facility. Although it was open to the Government to submit visual material – such as photographs or a video recording of the premises where the applicants had been kept according to official records – or other evidence casting doubt in that respect, they did not back their assertions with such evidence ( see paragraph 19 above ). According to the Court ’ s case-law, when applicants produce prima facie credible accounts or evidence that the conditions in which they were detained were inhuman or degrading, it is for the respondent Government to come up with explanations or evidence which can cast doubt in that respect, failing which the Court may find the applicants ’ allegations proven (see, among other authorities, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § § 122 -23, 10 January 2012 ). 75. The Court will therefore take into account the video submitted by the applicants in establishing the conditions of their detention. 2. Examination of the merits of the complaint (a) The parties ’ submissions 76. The Government submitted that neither the conditions in the border police ’ s detention facility in Vidin nor the manner in which the applicants had been provided there with food and drink had been in breach of Article 3 of the Convention, especially in view of the presence of both their parents and the limited amount of time which they had spent there – especially the fifth applicant, who had been out of the facility for several hours when taken to a hospital in Vidin on 18 August 2015. There was no requirement under Bulgarian law to detain minor migrants in specially adapted facilities. 77. The applicants maintained their allegations regarding the conditions in the border police ’ s detention facility in Vidin, and submitted that they matched the findings of a number of monitoring reports about the conditions in which migrants were being detained in Bulgaria. They pointed out that owing to such problems some States had in the past refused to send asylum ‑ seekers back to Bulgaria under the Dublin Regulations. (b) The Court ’ s assessment ( i ) Relevant principles and case-law 78. The general principles applicable to the treatment of people held in immigration detention were recently set out in detail in Khlaifia and Others v. Italy ( [GC], no. 16483/12, § § 158-67, ECHR 2016 (extracts) ), and there is no need to repeat them here. 79. It should, however, be noted that the immigration detention of minors, whether accompanied or not, raises particular issues in that regard, since, as recognised by the Court, children, whether accompanied or not, are extremely vulnerable and have specific needs ( see, as a recent authority, Abdullahi Elmi and Aweys Abubakar v. Malta, nos. 25794/13 and 28151/13, § 103, 22 November 2016 ). Indeed, the child ’ s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant. Article 22 § 1 of the 1989 Convention on the Rights of the Child (1577 UNTS 3) encourages States to take appropriate measures to ensure that children seeking refugee status, whether or not accompanied by their parents or others, receive appropriate protection and humanitarian assistance (see Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012). In recent years, the Court has in several cases examined the conditions in which accompanied minors had been kept in immigration detention. 80. The applicants in Muskhadzhiyeva and Others v. Belgium (no. 41442/07, 19 January 2010) had been respectively seven months, three and a half years, five years and seven years old, and had been detained for one month. Noting their age, the length of their detention, the fact that the detention facility had not been adapted for minors, and the medical evidence that they had undergone serious psychological problems while in custody, the Court found a breach of Article 3 (ibid., §§ 57-63). 81. The applicants in Kanagaratnam v. Belgium (no. 15297/09, 13 December 2011) had been respectively thirteen, eleven, and eight years old, and had been detained for about four months. The Court noted that they had been older than those in the above-mentioned case and that there was no medical evidence of mental distress having been experienced by them in custody. Even so, noting that ( a ) the detention facility had not been adapted to minors, ( b ) the applicants had been particularly vulnerable owing to the fact that before arriving in Belgium, they had been separated from their father on account of his arrest in Sri Lanka and had fled the civil war there, ( c ) their mother, although with them in the facility, had been unable to take proper care of them, and ( d ) their detention had lasted a much longer period of time than that in the case of Muskhadzhiyeva and Others ( cited above ), the Court found a breach of Article 3 (ibid., §§ 64-69 ). 82. The applicants in Popov v. France ( nos. 39472/07 and 39474/07, 19 January 2012 ) had been respectively five months and three years old, and had been detained for fifteen days. Although designated for receiving families, the detention facility had been, according to several reports and domestic judicial decisions, not properly suited for that purpose, both in terms of material conditions and in terms of the lack of privacy and the hostile psychological environment prevailing there. That led the Court to find that, ( a ) despite the lack of medical evidence to that effect, the applicants, who had been very young, had suffered stress and anxiety, and that (b ) in spite of the relatively short period of detention, there had been a breach of Article 3 (ibid., §§ 92-103). 83. The applicants in five recent cases against France – R.M. and Others v. France (no. 33201/11, 12 July 2016), A.B. and Others v. France ( no. 11593/12, 12 July 2016), A.M. and Others v. France ( no. 24587/12, 12 July 2016), R.K. and Others v. France ( no. 68264/14, 12 July 2016) and R.C. and V.C. v. France ( no. 76491/14, 12 July 2016) – had been between four months and four years old, and had been detained for periods ranging between seven and eighteen days. The Court noted that unlike the detention facility at issue in Popov (cited above), the material conditions in the two detention facilities concerned in those five cases had not been problematic. They had been adapted for families that had been kept apart from other detainees and provided with specially fitted rooms and child- care materials. However, one of the facilities had been situated right next to the runways of an airport, and so had exposed the applicants to particularly high noise levels. In the other facility, the internal yard had been separated from the zone for male detainees by only a net, and the noise levels had also been significant. That had affected the children considerably. Another source of anxiety had been the constraints inherent in a place of detention and the conditions in which the facilities had been organised. Although over a short period of time those factors had not been sufficient to attain the threshold of severity engaging Article 3 of the Convention, over a longer period their effects would necessarily have affected a young child to the point of exceeding that threshold. Since the periods of detention had been, in the Court ’ s view, long enough in all five cases, it found breaches of Article 3 in each of them (see R.M. and Others v. France, § § 72 -76; A.B. and Others v. France, § § 11 1 -15; A.M. and Others v. France, § § 4 8 -53; R.K. and Others v. France, § § 68 -72; and R.C. and V.C. v. France, § § 36 -40, all cited above ). (ii) Application in this case 84. In this case, the period under consideration was, according to the Government ’ s calculations, about thirty-two hours. According to the applicants ’ calculations, it was about forty-one hours (see paragraphs 11 and 29 above). Whichever of the two versions is taken as correct, it is clear that this amount of time was considerably shorter than the periods at issue in the cases mentioned in the previous paragraphs. However, the conditions in the border police ’ s detention facility in Vidin, as described by the applicants ( without being contradicted by the Government ), and as revealed by the video submitted by them, were considerably worse than those in all those cases. The cell in which the applicants were kept, though relatively well ventilated and lit, was extremely run-down, with paint peeling off the walls and ceiling, dirty and worn out bunk beds, mattresses and bed linen, and litter and damp cardboard on the floor (see paragraph 15 above). It can hardly be said that those were suitable conditions in which to keep a sixteen-year old, an eleven- year old, and especially a one-and-a-half-year old, even for such a short period of time. 85. To this should be added the limited possibilities for accessing the toilet, which – as asserted by the applicants and as revealed by the video which they submitted (see paragraphs 15, 20, 24 and 27 above) – forced them to urinate onto the floor of the cell in which they were kept. Since the Government did not dispute that assertion or submit any evidence to disprove it, it must be regarded as proven. 86. The Court has many times held, in relation to prisons and pre-trial detention facilities, that subjecting a detainee to the humiliation of having to relieve himself or herself in a bucket in the presence of other inmates can have no justification, except in specific situations where allowing visits to the sanitary facilities would pose a concrete and serious safety risk (see the cases cited in Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 211, ECHR 2014 (extracts) ). That must be seen as equally, if not more, applicable to detained minor migrants. 87. The final element to be taken into account is the authorities ’ alleged failure to provide the applicants with food and drink for more than twenty ‑ four hours after taking them into custody (see paragraphs 20, 25 and 26 above, and see, also as regards the adequate provision of food to people in detention, Kadiķis v. Latvia (no. 2), no. 62393/00, § 55, 4 May 2006; Stepuleac v. Moldova, no. 8207/06, § 55, 6 November 2007; and Korneykova and Korneykov v. Ukraine, no. 56660/12, § 141, 24 March 2016). The applicants ’ allegations in that respect must likewise be seen as proven, given that the Government only stated that they had been provided with quantities of food amounting to the prescribed daily rations, without commenting on the specific allegations about the serious delay in the provision of food and the manner in which it had in fact been provided ( see paragraph 26 above ). 88. Nor did the Government dispute the allegation that the second applicant had only been given access to the baby bottle and the milk of the toddler (the fifth applicant) about nineteen hours after they had been taken into custody (see paragraph 23 above). The small shoulder bag which can be seen in the video submitted by the applicants (see paragraph 15 above) does not appear to contain such items. In any event, a facility in which a one ‑ and ‑ a-half-year-old child is kept in custody, even for a brief period of time, must be suitably equipped for that purpose, which does not appear to have been the case with the border police ’ s detention facility in Vidin. 89. The combination of the above-mentioned factors must have affected considerably the third, fourth and fifth applicants, both physically and psychologically, and must have had particularly nefarious effects on the fifth applicant in view of his very young age. Those effects were hardly offset by the few hours that he spent in the hospital in Vidin in the afternoon and evening of 18 August 2015 ( see paragraph 25 above ). 90. By keeping those three applicants in such conditions, even for a brief period of time, the Bulgarian authorities subjected them to inhuman and degrading treatment. 91. It is true that in recent years the High Contracting States that sit on the European Union ’ s external borders have had difficulties in coping with the massive influx of migrants (see M.S.S. v. Belgium and Greece, cited above, § 223). But a perusal of the relevant statistics shows that although the numbers are not negligible, in recent years Bulgaria has by no means been the worst affected country ( see paragraphs 8 and 39 - 41 above ). Indeed, the number of third-country nationals found illegally present on its territory in the course of 2015 was about twenty times lower than in Greece and about forty-four times lower than in Hungary (ibid.). It cannot therefore be said that at the relevant time Bulgaria was facing an emergency of such proportions that it was practically impossible for its authorities to ensure minimally decent conditions in the short-term holding facilities in which they decided to place minor migrants immediately after their interception and arrest (contrast, mutatis mutandis, Khlaifia and Others, cited above, §§ 178-83). 92. In any event, in view of the absolute character of Article 3 of the Convention, an increasing influx of migrants cannot absolve a High Contracting State of its obligations under that provision, which requires that people deprived of their liberty be guaranteed conditions compatible with respect for their human dignity. A situation of extreme difficulty confronting the authorities is, however, one of the factors in the assessment whether or not there has been a breach of that Article in relation to the conditions in which such people are kept in custody ( ibid., §§ 184-85 ). 93. In view of the above considerations, the Court concludes that there has been a breach of Article 3 of the Convention with respect to the third, fourth and fifth applicants. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 94. 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 95. The applicants claimed 12,000 euros (EUR) in respect of the distress and humiliation which they had endured as a result of the conditions in which the third, fourth and fifth applicants had been detained. They submitted that those feelings had been exacerbated by their extreme vulnerability at the time. 96. The Government submitted that the claim was exorbitant and surpassed by several times the awards made in previous similar cases in respect of Bulgaria. In their view, the finding of a breach would constitute sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicants. 97. The Court finds that the third, fourth and fifth applicants must have suffered non-pecuniary damage as a result of the inhuman and degrading conditions in which they were kept in the border police ’ s detention facility in Vidin. Ruling in equity, as required under Article 41 of the Convention, it awards each of them EUR 6 00, plus any tax that may be chargeable on those sums. B. Costs and expenses 98. The applicants sought EUR 2,731 (the equivalent, according to them, of 2,995 Swiss francs (CHF) ) in respect of the fees of their representative and those of an interpreter from Arabic into French. They explained that the interpreter, who had facilitated their communication with their representative, was employed by the SAJE on a monthly salary; that was why his services had not been billed separately. In support of their claim, the applicants submitted a bill of costs drawn up by their representative. According to that bill the representative had worked a total of twelve and a half hours on the case, at the hourly rate of CHF 200, and the interpreter had worked three hours on the case, at the hourly rate of CHF 65. 99. The Government submitted that the sum claimed in respect of the work done by the applicants ’ representative was exorbitant, and noted that the applicants had not claimed the reimbursement of other expenses. 100. According to the Court ’ s case-law, applicants are 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 these principles and the materials in its possession, in this case the Court awards jointly to all applicants a total of EUR 1,000, plus any tax that may be chargeable to them, in respect of all heads of costs. C. Default interest 101. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in respect of the three children. It noted in particular that the amount of time spent by the applicants in detention – a period of either thirty-two hours or forty-one hours (the exact length of time was disputed by the parties) – was shorter than the periods referred to in the above-mentioned cases. However, the conditions were considerably worse than those in all those cases (including limited access to toilet facilities, failure to provide food and drink and delayed access to the toddler’s baby bottle and milk). For the Court, by keeping the three minor applicants in such conditions, even for a brief period of time, the Bulgarian authorities subjected them to inhuman and degrading treatment. While acknowledging that in recent years the States Parties that sit on the European Union’s external borders have had difficulties in coping with the massive influx of migrants, the Court found, however, that it could not be said that at the relevant time Bulgaria was facing an emergency of such proportions that it was practically impossible for its authorities to ensure minimally decent conditions in the short-term holding facilities in which they decided to place minor migrants immediately after their interception and arrest. |
890 | Public or political figures | RELEVANT LEGAL FRAMEWORK 23. The relevant Articles of the Constitution provide: Article 89 “The State shall recognise and protect fundamental human rights in accordance with this Constitution, laws and international agreements binding upon Latvia.” Article 96 “Everyone has the right to inviolability of his or her private life, home and correspondence.” 24. Section 1635 of the Civil Law provides that any infringement of rights, that is to say every unlawful activity, gives the person who has suffered damage, including non-pecuniary damage, the right to claim compensation from the wrongdoer, to the extent that he or she may be held liable for such act. 25. The domestic courts in their judgment relied on the Declaration on mass communication media and Human Rights, adopted by Resolution 428 (1970) of the Parliamentary Assembly of the Council of Europe on 23 January 1970. In its relevant part the declaration reads as follows: “C. Measures to protect the individual against interference with his right to privacy 15. There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by Article 8 of the Convention on Human Rights. The exercise of the former right must not be allowed to destroy the existence of the latter. 16. The right to privacy consists essentially in the right to live one’s own life with a minimum of interference. It concerns 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, protection from disclosure of information given or received by the individual confidentially. Those who, by their own actions, have encouraged indiscreet revelations about which they complain later on, cannot avail themselves of the right to privacy. 17. A particular problem arises as regards the privacy of persons in public life. The phrase "where public life begins, private life ends" is inadequate to cover this situation. The private lives of public figures are entitled to protection, save where they may have an impact upon public events. The fact that an individual figures in the news does not deprive him of a right to a private life. ... 21. The right to privacy afforded by Article 8 of the Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. National legislations should comprise provisions guaranteeing this protection.” 26. The Court in its 2004 Von Hannover judgment (cited above, § 42) cited Resolution 1165 (1998) on the right to privacy, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998. The most pertinent parts of the Resolution read as follows: “6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy. 7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain. 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 by the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 27. The applicant complained that the dismissal of her complaint about the publication of covertly taken photographs with captions that depicted her leaving hospital with her newborn baby had violated her rights to private and family life as provided in Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Submissions by the partiesThe Government The Government The Government 28. According to the Government, the impugned article had contributed to a debate of general interest about a public person’s private life and family values. J.N. had previously disclosed details about his and the applicant’s private life, and the applicant had not objected. 29. As to how known the person concerned had been, the Government noted that J.N. had been at that time a public person and the article had addressed the birth of his child. J.N. had raised no objections to the publication of that article. While cohabiting with a public person did not deprive the applicant of her rights, she had to be aware that articles about a public person could contain information about his or her family members. 30. In relation to the applicant’s conduct vis-à-vis the media, the Government referred to the applicant’s interview in 2005 where she had acknowledged society’s interest in her as J.N.’s partner. They also pointed to the 2003 article in Privātā Dzīve where information about J.N.’s and the applicant’s expecting their first child had been published and which the applicant had not challenged. 31. As to the content, form and consequences of the article, the Government noted that the photographs had been taken in a public place and had addressed one particular event in the applicant’s life. They had not been taken as a result of tracking and secretly photographing the applicant’s intimate life. The photographs had not shown the applicant in a humiliating manner. In the Governments view, from the standpoint of an unbiased observer, the photographs could never be perceived as intimate, provocative or offensive. 32. With respect to the circumstances in which the photographs had been taken, the Government believed that the domestic courts had paid due regard to the fact that the photographs had been taken covertly and that the applicant had not consented to their publication. At the same time, the photographs had been taken in a lawful manner and not in circumstances harmful to the applicant or by illicit means. 33. The Government argued that on the above-mentioned grounds the present case should be distinguished from the 2004 case of Von Hannover v. Germany (no. 59320/00, ECHR 2004 ‑ VI), and that the domestic courts had properly balanced the competing interests at stake. The applicant 34. The applicant submitted that the State had failed in its positive obligation to ensure protection of her private and family life. The relevant domestic law did not regulate how to balance the right to private and family life with the right to freedom of expression, and the domestic courts had failed to apply the Convention correctly. 35. In particular, they had failed to rule that photographs formed part of the concept of private life. Incorrectly referring to the Court’s case of Peck v. the United Kingdom (no. 44647/98, ECHR 2003 ‑ I), the domestic courts had noted that the taking of photographs in a public place had not breached private life. They had also failed to consider that the taking and the publishing of photographs concerned different aspects of the right to private life. With respect to the applicant’s case, they had disregarded the fact that most of the photographs had been taken in the hospital grounds or next to its entrance and that it had not been possible to leave the hospital without crossing those spaces. 36. With respect to the necessity in a democratic society, the courts had merely found that the article as a whole had contributed to the general debate on family values of a public person. However, they had failed to analyse what contribution to that debate had been made by the photographs and their captions. The applicant emphasised that she had not contested the publication of the information about the birth of the child. Her grievance concerned the publication of the photographs and their captions, which had shown when and how the applicant, her partner and their newborn baby had left hospital. The captions had spoken about the belongings she had had with her and the issues they had been dealing with during that process. The domestic courts had failed to recognise that the contested photographs and their captions had been “tawdry allegations” about the applicant’s private life. 37. The domestic courts had also not paid sufficient regard to the fact that the applicant had been a private person. They had only addressed her partner’s status as a public person. However, the majority of the photographs had depicted the applicant and not her partner, and all of the photographs had been accompanied by comments regarding the applicant, her belongings and her actions. 38. With respect to her prior conduct the applicant noted that she had not provided any information to the press prior to the impugned article. Furthermore, even previous cooperation with the press could not deprive a person of protection of his or her right to private life and justify further publication of photographs and information about that private life. As to her interview of 2005, the applicant emphasised that it had been given subsequent to the impugned article and therefore could not be relied on to demonstrate her prior conduct. Besides, that interview had been given voluntarily and with a purpose of promoting the ideas of gender equality and addressing the importance of women’s participation in the labour market following childbirth. 39. The applicant emphasised that the domestic courts had failed to analyse the case from the perspective of duties and responsibilities associated with the exercise of the freedom of expression. The impugned article had revealed information about very private details of her life, such as how she had looked when leaving hospital, the belongings she had taken to hospital, and her interactions with her partner at that moment. Those facts had had no relevance to any debate of general interest. The applicant also pointed to her obvious vulnerability at the moment when the photographs had been taken – she had given birth only a couple of days prior and had been breastfeeding her newborn baby. While the domestic courts had considered that the photographs had not been taken as a result of following her daily activities, they had nonetheless been taken by following her – only after leaving the hospital grounds had the applicant noticed that she had been covertly filmed from a car with tinted windows. The car had followed them to their home and had continued observing them from outside their garden. The applicant highlighted the stress experienced due to the covert filming, the feeling of helplessness caused by the article, and her vulnerable post-partum state. Admissibility 40. The Court reiterates that the concept of “private life” extends to aspects relating to personal identity, such as person’s image. A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right of each person to the protection of his or her image presupposes the right to control the use of that image. Whilst in most cases it entails the possibility to refuse publication of the image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 87 and 89, 17 October 2019) 41. As to whether a person’s private life is concerned by measures effected outside a person’s home or private premises, the Court has held that 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 in this assessment. In order to determine whether Article 8 applies, the Court also finds it relevant to address whether the individual in question was targeted by the monitoring measure or whether personal data was processed, used or made public in a manner or to a degree surpassing what those concerned could reasonably have foreseen (ibid., §§ 89-90). 42. The Court emphasises that the domestic courts’ conclusion that the taking of photographs in a public place without the person’s consent did not constitute an interference with the right to private life finds no support in the case of Peck (cited above). In that case the Court’s finding that the monitoring of the actions and movements of an individual in a public place did not, as such, give rise to an interference with the individual’s private life concerned the use of photographic equipment which did not record visual data. The Court did, however, add that the recording of the data and the systematic or permanent nature of the record may give rise to such considerations (see Peck, cited above, § 59, see also López Ribalda and Others, cited above, § 89). 43. In the present case, the applicant was photographed leaving hospital after childbirth. While the hospital’s entrance is a public place, it had to be traversed for the child to be brought home. The applicant was unaware that she was being recorded. Furthermore, she was individually targeted by the photographer and the photographs with captions were published in a magazine nationwide. Accordingly, the applicant’s exposure when leaving hospital in order to bring her newborn home far exceeded any exposure to a passer-by she could have anticipated (contrast Vučina v. Croatia (dec.), no. 58955/13, §§ 35-36, 24 September 2019, where the applicant was openly photographed in a public concert). 44. Accordingly, the Court considers that the publication of the covertly taken photographs without the applicant’s consent encroached on the applicant’s private life and Article 8 is therefore applicable in the present case. 45. The Court further observes 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. MeritsGeneral principles General principles General principles 46. The Court starts from the premise that the present case requires an examination of the fair balance that has to be struck between the applicants’ right to the protection of their private life under Article 8 of the Convention and the publisher’s, editor’s and journalist’s right to freedom of expression as guaranteed by Article 10 (see, for example, Lillo-Stenberg and Sæther v Norway, no. 13258/09, § 25, 16 January 2014). The principles with respect to the State’s positive obligations and the criteria for balancing the protection of private life against freedom of expression were set out in the Court’s 2004 judgment in the case of Von Hannover (cited above, §§ 57-60) and have subsequently been elaborated in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, §§ 95-113, ECHR 2012); Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 78 ‑ 95, 7 February 2012); and Couderc and Hachette Filipacchi Associés v. France ([GC], no. 40454/07, §§ 83-93, ECHR 2015 (extracts)), amongst other authorities. As identified in those cases, the main criteria of assessment are: contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the report; the prior conduct of the person concerned; the content, form and consequences of the publication; and the circumstances in which photos were taken. 47. The Court has frequently emphasised that 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 (see, amongst other authorities, Von Hannover, cited above, § 101). While freedom of expression includes the publication of photographs, this is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance, as the photographs may contain very personal or even intimate information about an individual and his or her family (see Lillo-Stenberg and Sæther cited above, § 30, and Rothe v. Austria, no. 6490/07, § 47, 4 December 2012). The task of imparting information necessarily includes “duties and responsibilities”, as well as limits which the press must impose on itself spontaneously. Wherever information bringing into play the private life of another person is in issue, journalists are required to take into account, in so far as possible, the impact of the information and pictures to be published prior to their dissemination. Certain events relating to private and family life enjoy particularly attentive protection under Article 8 of the Convention and therefore merit particular prudence and caution when covering them (see Couderc and Hachette Filipacchi Associés, cited above, §§ 89 and 140). 48. In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by photos or articles in the press to a debate of general interest. In its 2004 judgment in the case of Von Hannover the Court made a distinction between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society, and reporting details of the private life of an individual who does not exercise official functions. While in the former case the press exercises its vital role of “watchdog” in a democracy by imparting information and ideas on matters of public interest, it does not do so in the latter case. Where the situation does not come within the sphere of any political or public debate and published photos and accompanying commentaries relate exclusively to details of the person’s private life with the sole purpose to satisfy the curiosity of a particular readership freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, §§ 60-66, see also Couderc and Hachette Filipacchi Associés, cited above, §§ 100-03). Application 49. The issue in the present case is whether the domestic courts ensured a fair balance between the protection of the applicant’s private life and the right of the opposing party to freedom of expression. In exercising its supervisory function, the Court’s task is to review, in the light of the case as a whole, whether the decisions the domestic courts have taken pursuant to their power of appreciation are in conformity with the criteria laid down in the Court’s case-law. Accordingly, the Court will analyse in turn the elements identified as relevant in this regard in its case-law (see paragraph 46 above) and the domestic courts’ assessment thereof. (a) Contribution to a debate of general interest 50. 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, cited above, § 109, with further references). While the applicant argued that the impugned article had made no contribution to a debate of public interest, the domestic courts and the Government contended that it had made such a contribution by addressing the private life and family values of a public person – the applicant’s partner. 51. The Court has previously held that, although the publication of news about the private life of public figures is generally for the purposes of entertainment, it contributes to the variety of information available to the public and undoubtedly benefits from the protection of Article 10 of the Convention. However, 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. Articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society (see Couderc and Hachette Filipacchi Associés, cited above, §§ 89 and 100, see also Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 52, 4 June 2009.) Additionally, the Court reiterates that, although the birth of a child is an event of an intimate nature, it also falls within the public sphere, since it is in principle accompanied by a public statement (the civil-status document) and the establishment of a legal parent-child relationship. A news report about a birth cannot be considered, in itself, a disclosure concerning exclusively the details of the private life of others intended merely to satisfy the public’s curiosity (see Couderc and Hachette Filipacchi Associés, cited above, § 107). 52. The impugned article concerned an inherently private and intimate event in the lives of the applicant and J.N. – the birth of their second child and their coming home from hospital. Neither the impugned article, nor other material in the case file demonstrate that the information about the applicant’s and her partner’s private life was a matter of a general importance (contrast Éditions Plon v. France, no. 58148/00, § 53, ECHR 2004 ‑ IV, concerning the state of health of the former President during his time in office; Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 45, ECHR 2004 ‑ X, concerning the conviction of a politician’s spouse; and Couderc and Hachette Filipacchi Associés, cited above, §§ 105 ‑ 16, concerning the existence of an heir, born out of wedlock, in a hereditary monarchy). While J.N. did hold a post in a political party, at the time of the impugned article that party held no seats in Parliament and J.N. did not exercise any official functions. Furthermore, at the time of the impugned article, in November 2004, time had passed since the events covered by the press in 2003, such as the dissolution of J.N.’s marriage and the fact that he had the first child with the applicant (see paragraph 6 above). Accordingly, it has not been substantiated that J.N.’s private life as such was among the issues that affected the public in November 2004 (compare Tammer v. Estonia, no. 41205/98, § 68, ECHR 2001 ‑ I). 53. At the same time, the Court considers that in so far as the impugned article addressed the birth of J.N.’s second child, it did touch on a matter that had a public side. The Court notes, however, that the contribution such an article makes to matters of general importance is lower compared to the articles that advance political or other public debate, for example, relating to politicians in the exercise of their functions, with respect to which the press exercises its vital role of “public watchdog” (compare Von Hannover, cited above, §§ 63 ‑ 65). (b) How well known is the person concerned 54. The Court has previously stated that it is, in principle, primarily for the domestic courts to assess how well known a person is, especially in cases where he or she is known primarily at national level (see Axel Springer AG, cited above, § 98). The domestic courts considered that J.N. was a public figure. Such status was not attributed to the applicant. They further noted that as a partner of a public person and a mother of his child, the applicant had to take into account that she could attract media attention and that she had no grounds to believe that the information about the birth of J.N.’s child would be disseminated without mentioning her as the child’s mother (see paragraphs 16 and 22 above). 55. The Court has previously accepted that, with respect to shared events, the degree to which an applicant is considered well known in relation to that specific occasion could be derived from the public status of the partner (see Sihler-Jauch and Jauch v. Germany (dec.), nos. 6823/10 and 34194/11, § 35, 24 May 2016). Similarly, the Court has considered that a private person can enter the public domain with his or her conduct and association with a public person (see Flinkkilä and Others v. Finland, no. 25576/04, §§ 82-83, 6 April 2010). However, in those cases the Court also assessed whether the information disclosed primarily concerned the public figure and did not touch the core of the private person’s privacy (see Sihler-Jauch and Jauch, § 38, and Flinkkilä and Others, §§ 84 ‑ 85, both cited above). Accordingly, while a private person may become susceptible to public exposure, the Court pays due regard to the extent of the information made public. 56. In the present case, the birth of the applicant’s and J.N.’s child did make the applicant, herself a private person, susceptible to certain exposure with respect to that shared event. The domestic courts were right to consider that the applicant could have anticipated that she would be mentioned as the child’s mother and that articles about the birth of her son might contain information about her (see paragraphs 16 and 22 above). However, in view of the type and extent of the material disclosed and its focus on the applicant, the Court considers that the impugned publication went well beyond any notoriety the applicant may have derived from the public status of her partner or that was merited by the particular shared event. 57. Additionally, the Court is of the view that the domestic courts should exercise a degree of caution when assessing the person’s public status and notoriety in situations, such as the present one, where a partner of a public person attracts media attention merely on account of his or her private or family life relations. (c) What is the subject of the report 58. The applicant did not complain, neither domestically, nor before this Court, about the fact that the article contained information about the birth of her son or that she was mentioned as the child’s mother. Her complaint was directed at the publication of the covertly taken photographs showing her leaving hospital after the labour and their captions. 59. As the Court has previously held, the “duties and responsibilities” linked with the exercise of the freedom of expression are particularly important in relation to the dissemination to the wide public of photographs revealing personal and intimate information about an individual (see Egeland and Hanseid v. Norway, no. 34438/04, § 59, 16 April 2009). Certain events in the life of a family must be given particularly careful protection and must therefore lead journalists to show prudence and caution when covering them (see Couderc and Hachette Filipacchi Associés, cited above, § 140, see also Hachette Filipacchi Associés v. France, no. 71111/01, § 46, 14 June 2007). 60. The Court has already had an opportunity to observe that giving birth is a unique and delicate moment in a woman’s life that encompasses issues of physical and moral integrity, health-related information and the choice of the place of birth, amongst others (see Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 163, 15 November 2016). The bringing home of the newborn child shortly after the labour forms part of that experience and takes place in the sensitive postpartum period. Any assessment of how such events were reported, in the Court’s view, must bear that in mind. 61. In that regard the Court observes that the domestic courts did not make a distinction between the information about the birth of the child, which the child’s father had been willing to disclose, and the publication of the covertly taken photographs depicting the applicant at the private moment of leaving hospital after her labour (contrast MGN Limited v. the United Kingdom, no. 39401/04, §§ 147-51, 18 January 2011, where the domestic courts made a distinction between the private information that had already been disclosed and had been legitimately the subject of a public debate on the one hand, and the publication of additional private information and covertly taken photographs on the other; see also Rothe, cited above, § 73). The Court emphasises that even where the article makes a contribution to the public debate, the disclosure of private information must not exceed the latitude accorded to editorial assessment and has to be justified (see MGN Limited, cited above, §§ 147-51; compare also Alkaya v. Turkey, no. 42811/06, §§ 34 ‑ 36, 9 October 2012). Particular regard has to be had to situations of vulnerability (see Egeland and Hanseid, cited above, § 61). 62. The Court observes that nothing in the domestic courts’ reasoning suggests that the publication of the applicant’s photographs depicting her after the labour would have been necessary to ensure the credibility of the story about the birth of her child or that there would have been a compelling need for the public to have this additional material disclosed (compare MGN Limited, § 151, and contrast Couderc and Hachette Filipacchi Associés, § 148, both cited above). The Court is also of the view of that the domestic courts did not provide sufficient explanation for their finding that J.N.’s having informed the public about the applicant’s pregnancy turned bringing the newborn baby home into a public event. While the journalists could indeed legitimately consider that they could publish information about the birth of the child, the childbirth and the bringing home of the child did not lose their inherently private character merely from the disclosure of such fact. (d) Prior conduct of the person concerned 63. The Court observes that the domestic courts held against the applicant the fact that she had not challenged the article of August 2003 where information concerning her first pregnancy had been disclosed, as they regarded the impugned article to be its narrative continuation. Furthermore, the fact that the applicant had subsequently given an interview one year later where she had acknowledged society’s interest in her, due to the relationship with a public figure, was viewed as her acceptance of the publicity (see paragraph 16 above). 64. The Court has already held that the mere fact of having cooperated with the press on previous occasions or an alleged or real previous tolerance or accommodation with regard to articles touching on private life cannot serve as an argument for depriving the person of the right to privacy (see Couderc and Hachette Filipacchi Associés, § 130, and Lillo-Stenberg and Sæther, § 38, both cited above). A fortiori, a failure to challenge a less intrusive article cannot be relied on to justify more invasive articles in future (see Egeland and Hanseid, cited above, §§ 61-62). Furthermore, even when persons have made public some private information about themselves, the manner in which it is subsequently portrayed has to be justified in the circumstances of the case (see Tammer, cited above, § 66). The person having given interviews does not dispense the State from its positive obligation to protect the person’s privacy, as seeking to avail of media to share information in a setting the person has selected cannot, in principle, be held against him or her (compare Peck v. the United Kingdom, no. 44647/98, § 86, ECHR 2003 ‑ I, where the applicant made media appearances to expose and complain about a wrongdoing against him). 65. The Court observes that the 2003 article mentioned the applicant’s first pregnancy and featured two photographs of her, neither of which appeared to have been taken covertly or depicted her in private circumstances. Moreover, these were not photographs of the applicant with her baby but of her alone (see paragraph 6 above). Noting particularly the differing levels of intrusion, the Court considers that the failure to challenge that article could not have been relied on in the impugned proceedings concerning the covertly taken photographs that depicted a very private moment in the applicant’s life with her second baby. The Court also observes the narrative and temporal gap between the two articles: the impugned article addressed the birth of the applicant’s second child and could not have been viewed as showing that the awaited event mentioned in the 2003 article, which concerned the applicant’s pregnancy with the first child, had taken place (contrast the domestic courts’ reasoning in paragraphs 15 and 21 above). Lastly, the applicant’s subsequent interview in a different magazine approximately a year after the impugned article did not change the nature of the interference caused by the publication of that article and could not have been relied on to justify the prior disclosure of private information (compare Peck, cited above, § 86). Also the applicant’s acknowledgment that the public took an interest in her owing to the public-person status of her partner could in no way be viewed as a posterior consent to the publication of the covertly taken photographs. 66. Accordingly, the Court considers that no elements of the applicant’s prior conduct referred to in the domestic proceedings could have been invoked in order to limit the protection of her right to privacy. (e) Content, form and consequences of the article 67. The impugned article consisted of a short text informing the public of the birth of the applicant’s and J.N.’s child and nine covertly taken photographs with captions depicting the moment when the applicant and J.N. were leaving hospital with their newborn baby. The applicant’s photograph was also put on the magazine’s cover. The Court considers that while the impugned article did contain some factual information, the emphasis was on the photographs and their captions, leading the domestic courts to characterise it as a “photo story” (see paragraphs 16 and 22 above). 68. While the Court agrees that the impugned photographs did not show the applicant in a humiliating manner, this fact cannot be considered decisive in view of the private nature of the event they depicted (see paragraphs 60-62 above). Furthermore, the Court observes that the accompanying captions did not meaningfully supplement the main news about the birth of the child and could not be seen as contributing to any matter of public interest. 69. With respect to the consequences of the article the Court observes that Privātā Dzīve was a celebrity-focused magazine with a nationwide reach read by a significant portion of the population. Furthermore, the same article was subsequently republished in full in January 2007, again accompanied by the covertly taken photographs (see paragraph 11 above). The potential subsequent use of the photographs is one of the factors the Court takes into account in assessing the level of intrusion (see Couderc and Hachette Filipacchi Associés, cited above, § 148, and Reklos and Davourlis v. Greece, no. 1234/05, § 42, 15 January 2009). (f) Circumstances in which photos were taken 70. It is not contested that the photographs of the applicant leaving hospital were taken covertly without her knowledge or consent. Nonetheless, the domestic courts attributed great importance to the fact that they had been taken in a public place – on the street. The courts also considered that these photographs had been taken to illustrate a specific event and “had not been connected with following the applicant’s everyday life and covertly photographing intimate moments of her private life” (see paragraphs 15 and 20 above). 71. The Court reiterates that the fairness of the means used to obtain the information and reproduce it for the public is an essential criterion to be taken into account (see Von Hannover, § 68, and Couderc and Hachette Filipacchi Associés, § 132, both cited above). With respect to the present case the Court considers that the applicant did not lay herself open to the possibility of having her photograph taken in the context of an activity that was likely to be recorded or reported in a public manner. The domestic courts did not take into account that the applicant needed to traverse the public space between the hospital’s entrance and her car in order to bring her newborn child home. This inherently private event was not an activity with respect to which the applicant should have anticipated publicity. In such circumstances an effective protection of a person’s image presupposes obtaining the consent of the person concerned at the time the picture is taken and not only if and when it is published. Otherwise an essential attribute of personality is retained in the hands of a third party and the person concerned has no control over any subsequent use of the image (see Reklos and Davourlis (cited above), §§ 37 and 40). 72. With respect to the domestic courts’ conclusion that the photographs were taken to illustrate a specific event and were not connected with following the applicant’s everyday life the Court notes that there is nothing in its case-law to suggest that a violation of the right to private life could only occur if the person had been followed systematically (for examples of cases were the violation emanated from a single incident see Peck, cited above; Egeland and Hanseid, cited above; and Gurgenidze v. Georgia, no. 71678/01, 17 October 2006). 73. Furthermore, the conclusion that the impugned photographs were not connected with covert photographing of intimate moments of the applicant’s private life was manifestly incompatible with the facts of the case. The Court draws attention to the applicant’s submissions, which were not contested by the Government, that after leaving the hospital grounds she had noticed that they had been covertly filmed from a car with tinted windows, which had followed them to their home and had continued observing them in their garden. The Court observes that the domestic courts did not address the fact that such an experience, particularly so soon after childbirth, could have caused feelings of anguish and helplessness. Similarly, they did not analyse whether such conduct was compatible with the duties and responsibilities associated with the exercise of the freedom of expression, triggering the State’s positive obligation to adopt measures securing respect for private life. (g) Conclusion 74. The Court considers that while the domestic courts did engage in the balancing exercise between the right to private life and freedom of expression, this exercise was not carried out in conformity with the criteria laid down in the Court’s case-law. Most importantly, sufficient attention was not paid to the limited contribution the article had made to issues of public importance and the sensitive nature of the subject matter shown in the photographs. No distinction was made between factual information partially falling within the public sphere and the publication of covertly taken photographs depicting an essentially private moment of the applicant’s life. The assessment of the applicant’s prior conduct was flawed and the intrusive manner of taking the photographs – which had been the focus of the article – was not taken into account. 75. In these circumstances, and notwithstanding the margin of appreciation which the domestic courts enjoy when balancing the conflicting interests of the right to private life with freedom of expression, the Court concludes that the State has failed to fulfil its positive obligations under Article 8 of the Convention. 76. There has accordingly been a violation of Article 8 of the Convention. 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.” Damage 78. The applicant claimed 9,114 euros (EUR) in respect of non ‑ pecuniary damage. 79. The Government considered that the applicant had not substantiated this claim. 80. The Court accepts that the applicant must have suffered non ‑ pecuniary damage. Ruling on an equitable basis, it awards the applicant EUR 7,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. Costs and expenses 81. The applicant also claimed EUR 532 for the costs and expenses incurred before the domestic courts. 82. The Government agreed that the compensation award should be limited to this sum. 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 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 532 for costs and expenses in the domestic proceedings, plus any tax that may be chargeable to the applicant. Default interest 84. 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, although the domestic courts had balanced the right to privacy of the applicant with the right to freedom of expression of the publishing magazine, they had failed to do so sufficiently or in line with the Court’s case-law. The Court agreed with the Latvian courts that the applicant, as the partner of a public figure, should have expected to be mentioned in the media as the child’s mother. However, it asserted that the article in question went well beyond what could reasonably have been expected. The Court stressed, in this respect, that a degree of caution was required where a partner of a public person attracted media attention merely on account of his or her private or family life. Furthermore, although the applicant had not been depicted in a humiliating manner, the article had been a “photo story”, with the text of secondary importance. The shots had been taken covertly, in a situation the applicant could not practicably have avoided – traversing the hospital car park – and she had been followed to her home. |
753 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW 30. Article 43 of the Constitution provides: “The coasts are the property of the State and fall within its jurisdiction. The public interest shall prevail in the use of seashores, lake shores and riverbanks and of the coastal strips situated by seas and lakes. The law shall determine the width of coastal strips according to their use, together with the possibilities and conditions for such use by individuals.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 31. The applicants complained that they had not received compensation for the loss they had sustained as a result of the demolition of their partially built hotel and the cancellation of the entry of their property in the land register. They relied on Article 1 of Protocol No. 1, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties'submissions 1. The applicants 32. The applicants submitted a copy of the land register produced by the relevant government department on 25 January 1958, indicating that the land in question had indeed been registered in their ascendant's name. They argued that the register could not be held to be unlawful since the appropriate authorities had not contested the entry in question within the statutory period. In that connection, they pointed out that they had continued to pay all the relevant taxes and duties on the property although the government had had the opportunity to contest its registration in their ascendant's name. They added that they had obtained all the necessary permits and grants at both local and national level to build a hotel complex there, in particular a building permit issued on 17 June 1986 by Alanya District Council. Although they had brought an action in the relevant courts, they complained that they had not received any compensation for the loss they had sustained on account of the invalidation of their title to the property and the destruction of the work already carried out. They had been deprived of their possession and the building site for the hotel complex had been demolished at their own expense, yet they had not obtained fair compensation for the loss sustained. 2. The Government 33. The Government explained that the case did not concern the expropriation or confiscation of property by the State. As the applicants had accepted, it involved ascertaining who could be regarded as the owner of a plot of coastal land which had been erroneously registered in the applicants'ascendant's name on 25 January 1958. They could not see any possible justification for the title claimed by the applicants'ascendant, especially as the State could not be held liable for such an error. The applicants had inherited the plot of land, measuring 26,645 sq. m, on 6 July 1984. The judicial proceedings in the instant case had begun after the publication of an article in a local newspaper criticising the building of a hotel on the beach. Taking into account the photographs of the land, the expert reports and the relevant provisions of the laws in force, the national courts had found that the property in issue was part of the coastline and that the coastline could not be owned by private individuals. The applicants'title to the property had been forfeited to the authorities and the hotel had been demolished. The Alanya District Court had dismissed the applicants'claim for damages in respect of the demolition of the hotel. 34. The Government submitted that the domestic authorities were empowered to assess the rules on the use of property in accordance with the public interest and the respondent State's margin of appreciation. The proceedings for the cancellation of the registration could equally well have been brought by any inhabitant of the town of Alanya wishing to complain that it was impossible to use the beach, a public area which was open to all. 35. With regard to the tourist investment certificate and the investment incentive certificate, issued by the Ministry of Culture and Tourism and the State Planning Organisation respectively, the Government explained that they had been awarded on the basis of the personal declarations submitted by the applicants, which were deemed to be valid in the absence of proof to the contrary. The relevant authorities did not check the accuracy of such declarations on their own initiative. B. The Court's assessment 36. The Court observes that, as it has previously held, 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 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, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see Bruncrona v. Finland, no. 41673/98, §§ 65-69, 16 November 2004, and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004 -V ). 37. The Court reiterates that in determining whether there has been a deprivation of possessions within the second “rule”, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are “practical and effective”, it has to be ascertained whether the situation amounted to a de facto expropriation (see Brumărescu v. Romania [GC], no. 28342/95, § 76, ECHR 1999 ‑ VII; Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, pp. 24-2 8, § § 63 and 69 ‑ 74; and Vasilescu v. Romania, judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1075-76, §§ 39-41 ). 38. In the present case there was an interference with the applicants'right to the peaceful enjoyment of their possessions, amounting to a “deprivation” of property within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. 39. The Court notes, firstly, that it was not disputed that the applicants had acquired the property in question in good faith. Furthermore, until the date on which the registration of the property in the land register was forfeited to the State, they were the owners of the property, having inherited it, and had paid the appropriate taxes and duties on it. They had peaceful enjoyment of their possession and had begun to build a hotel complex on the land as the lawful owners, after obtaining a building permit for that purpose. 40. The Court further notes that the applicants were deprived of their possession by a judicial decision (see paragraphs 21 and 27 above) which it does not find in any way arbitrary. Having regard to the reasons given by the national courts, it considers that it is beyond dispute that the applicants were deprived of their property “in the public interest”. It observes that it was common ground that the land in issue was on the seashore and formed part of the beach, a public area open to all ( see paragraph 21 above). Indeed, that aspect was emphasised by the Alanya District Court (see paragraph 27 above). The deprivation of property therefore pursued a legitimate aim. 41. Compensation terms under the domestic legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants. In this connection, the Court has previously held that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference, and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see Nastou v. Greece (no. 2), no. 16163/02, § 33, 15 July 2005; Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 111, ECHR 2005 -VI; and The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, p. 35, § 71). In the instant case the applicants did not receive any compensation for the transfer of their property to the Treasury or for the demolition of the hotel, despite having brought an action for damages in the Turkish courts. The Court notes that the Government did not cite any exceptional circumstances to justify the total lack of compensation. 42. The Court accordingly considers that the failure to award any compensation to the applicants upset, to their detriment, the fair balance that has to be struck between the protection of property and the requirements of the general interest. 43. There has therefore been a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 45. The applicants claimed 15, 987,000,000 Turkish liras (TRL) for pecuniary damage, corresponding to the value of the land, and TRL 5, 388,000 to reimburse the property tax they had paid for the period from 1986 to 1990. They relied in that connection on the expert report produced to the Alanya District Court. They submitted that the value of their investment in the property in issue amounted to TRL 1, 484,000,000. They further sought the reimbursement of TRL 4, 048,000,000,000 in respect of the duties they had paid and TRL 2, 260,000,000,000 in respect of interest. As regards the demolition of the hotel, they claimed TRL 4, 048,000,000,000 in respect of social security contributions and TRL 2, 260,000,000,000 for taxes and duties. The applicants also claimed 10,000,000 United States dollars (USD) for non-pecuniary damage. 46. The Government asked the Court to dismiss the applicants'claim for compensation. They submitted, in the alternative, that it was speculative as regards their alleged loss, seeing that the property in question was devoid of any market value since it could not be sold to private individuals. 47. The applicants sought USD 10,000 for costs and expenses. They submitted a copy of the legal assistance agreement they had signed with their lawyer and left the matter to the Court's discretion. 48. The Government contended that the agreement bound only the applicants and their lawyer and was not designed to guarantee the repayment of the expenses incurred by them on that account. They asked the Court to apply the Istanbul Bar's scale of fees, which laid down the minimum and maximum rates for cases before the Strasbourg institutions. 49. 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 applicants. | The Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention. It found that the applicants had acquired the disputed plot of land in good faith. Until the title was annulled in favour of the State, they had been the owners and had paid taxes in respect of the property. They had enjoyed peaceful possession of their property and had begun to have a hotel complex built on the land, as lawful owners, after obtaining a building permit for that purpose. But they were subsequently deprived of their property by a judicial decision, which the Court did not find in any way arbitrary. The deprivation of ownership of the land, which was located on the shoreline and was thus part of the beach, a public area open to all, fulfilled a legitimate purpose. However, the applicants had not received any compensation for the transfer of their property to the Public Treasury or for the demolition of the hotel, notwithstanding the proceedings they had brought to that end before the Turkish courts, and without any justification by the Turkish Government for the total lack of compensation. |
987 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | II. RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL REPORTS 78. For a summary of the relevant domestic law, including most of the relevant provisions of the Criminal Code, and practice and for international reports see Yunusova and Yunusov v. Azerbaijan ( no. 59620/14, §§ 92-103, 2 June 2016 ) and Rasul Jafarov (cited above §§ 50 ‑ 84). Furthermore, according to Article 213.2.2 of the Criminal Code, as in force at the material time, an offence of tax evasion on a very large scale (defined as an amount above AZN 100,000 but not exceeding AZN 500,000) was punishable by imprisonment for a period between three to seven years, with or without deprivation of the right to hold a certain position or to engage in a certain activity for a period of up to three years. 79. The relevant parts of the Concluding observations on the fourth periodic report of Azerbaijan (CCPR/C/AZE/4) adopted by the UN Human Rights Committee on 16 November 2016, read as follows: “Freedom of expression 36. The Committee remains concerned about extensive restrictions on freedom of expression in practice, including: (a) Consistent reports of intimidation and harassment, including arbitrary arrest and detention, ill-treatment and conviction of human rights defenders, youth activists, political opponents, independent journalists and bloggers on allegedly politically motivated trumped-up administrative or criminal charges of hooliganism, drug possession, economic crimes, tax evasion, abuse of office, incitement to violence or hatred etc.; ... 37. The State party should take all measures necessary to guarantee the full enjoyment of freedom of expression by everyone in practice. It should take immediate steps to end any repression against the above-mentioned categories of persons, provide effective protection against persecution or retaliation and ensure that any restrictions on the exercise of their freedom of expression comply with the strict requirements of article 19 (3) of the Covenant. ... ... Freedom of association 40. The Committee is concerned about restrictive legislation negatively affecting the exercise of freedom of association, including stringent registration requirements for public associations and NGOs, broad grounds for denial of registration and temporary suspension or permanent closure of NGOs, restrictive regulations on grants and donations received by public associations and NGOs, including the ban on foreign funding, and heavy penalties for violations of the relevant legislation. The Committee is further concerned about threats against NGO leaders, the high number of criminal investigations against NGOs, the freezing of their assets and those of their members and the significant number of NGOs that have been closed. ... 41. The State party should revise relevant laws, regulations and practices with a view to bringing them into full compliance with the provisions of articles 19 and 22 of the Covenant, including by: (a) Simplifying registration rules and clarifying the broad grounds for denying the registration of and temporarily suspending or permanently closing NGOs; (b) Ensuring that legal provisions regulating NGO grants allow access to foreign funding and do not put at risk the effective operation of public associations as a result of overly limited or overly regulated fundraising options; (c) Ending the crackdown on public associations and ensuring that they can operate freely and without fear of retribution for their legitimate activities; ...” 80. In addition, the United Nations Special Rapporteur on the situation of human rights defenders conducted an official visit to Azerbaijan from 14 to 22 September 2016. In the course of his visit, the Special Rapporteur met high-level representatives of the national authorities and members of civil society, including human-rights defenders in detention. The most relevant parts of the report on this visit (“Report of the Special Rapporteur on the situation of human rights defenders on his mission to Azerbaijan”), which was presented to the Human Rights Council at its thirty-fourth session (27 February-24 March 2017), read as follows: “ B. Situation of human rights defenders 1. Stigmatization 28. The situation of civil society in Azerbaijan has seen serious setbacks since 2009, as the rights to freedom of expression, assembly and association have increasingly been curtailed when exercised in opposition to the Government or its policies. Moreover, high-level government officials have used a strident rhetoric to stigmatize human rights defenders and declare them tools of Western influence bound to undermine the State. 29. In December 2014, the head of the Presidential Administration published an essay, stating that Western-funded NGOs played the role of a “fifth column” in Azerbaijan and made several public statements repeating the accusation. Other key officials made similar statements. Most defenders have been accused of being political opponents, promoting values that run counter to those of their society or culture. They have been denounced as politically or financially motivated actors. During the visit, it became evident that such inflammatory language by senior government officials has had a stigmatizing impact on civil society. 30. The continued stigmatization of defenders, which exposes them to heightened risks and produces a chilling effect on the public perception of them, remains of concern. Describing reputable organizations as paid political activists serves no legitimate purpose. The Special Rapporteur urges the Government to refrain from stigmatizing human rights defenders and to respect the legitimate role of civil society in the promotion of human rights and the rule of law in Azerbaijan. 31. The Government is encouraged to support the work of independent civil society organizations, despite disagreements or criticisms, bearing in mind their invaluable role in advancing Azerbaijani society. The Special Rapporteur urges the Government to undertake activities to raise awareness of human rights among the public and foster a spirit of dialogue and cooperation in society. 2. Criminalization 32. During the visit, the Special Rapporteur received many reports and testimonies pointing to the intensified crackdown on and criminalization of civil society in Azerbaijan. In that context, the authorities have targeted defenders, journalists, lawyers and grassroots activists through the use of politically motivated criminal prosecutions, arrests, imprisonment and travel bans. They have also used detention to intimidate political and social media activists on what often seem to be spurious misdemeanour charges of resisting police orders or petty hooliganism. 33. In 2015, the Committee against Torture expressed deep concern that human rights defenders had been arbitrarily deprived of their liberty, subjected to ill ‑ treatment and, in some cases, denied adequate medical treatment in retaliation for their professional activities (see CAT/C/AZE/CO/4, para. 10). At the conclusion of its visit in May 2016, the Working Group on arbitrary detention stated that defenders continued to be detained under criminal or administrative charges as a way to impair the exercise of their basic human rights and fundamental freedoms and to silence them. Those practices constituted an abuse of authority and violated the rule of law that Azerbaijan had agreed to comply with. The Working Group also referred to the large number of cases of detainees who were exposed to violence, torture and ill ‑ treatment. When he visited detained defenders during his visit, the Special Rapporteur could attest to the vulnerability of their physical integrity owing to the continued reports of violence in the context of detention in the country. 34. The Special Rapporteur, jointly with other mandate holders, has issued a number of public statements, urging the authorities to put an end immediately to all forms of persecution of human rights activists in the country. At the session of the Human Rights Council, held in June 2015, a group of 25 States endorsed an oral statement on the situation of human rights in Azerbaijan, raising concerns about the shrinking space for civil society and the imprisonment of independent voices, in particular defenders, and calling for their immediate and unconditional release. 35. The punitive approach to criminalize defenders is said to include a number of the following elements: applying politically motivated charges (inciting hatred, mass disorder and treason); resorting to fabricated charges (possession of drugs and weapons, hooliganism and embezzlement); and using special charges (illegal business activity, tax evasion, and abuse of office) to target primarily the heads of prominent NGOs in Azerbaijan and curtail the ability of NGOs to operate. 36. It is alarming that the maximum term of imprisonment under the code of administrative offences for misdemeanours, with which defenders are often charged (for example, hooliganism, resisting police and traffic violations), has been increased from 15 to 90 days. It is now equal to the minimum term of detention under the criminal code. The Human Rights Committee has held that such severity of punishment may amount to de facto criminal sanction (see CCPR/C/AZE/CO/4, para. 20). Furthermore, in practice, administrative trials that result in such sentences are reportedly perfunctory, with defendants having limited access to independent counsel. Judges tend to decide on periods of detention based almost exclusively on police testimonies. The widespread nature of this type of criminalization could be seen in the documenting of at least 30 cases by civil society, in which the authorities used administrative law offences to jail human rights activists in 2016. 37. The gravity of the arbitrary detention of defenders in Azerbaijan is illustrated through the continuous efforts by civil society to monitor and document how many political prisoners are in detention at a given time. Various lists of political prisoners are updated regularly to inform the debate about the exact number of political prisoners in the country. In fact, during their visits, both the Special Rapporteur and the Working Group on arbitrary detention received various lists of a large number of defenders, journalists and political and religious leaders who were detained on a broad range of politically motivated charges (drugs- and arms-related offences, hooliganism, resisting police, tax evasion, etc.) during their visits. 38. In late 2015 and early 2016, the Government conditionally released or pardoned a number of human rights defenders. However, none of those released had their convictions vacated and several still face travel restrictions. The Special Rapporteur shares the view of the Working Group on arbitrary detention that the pardon did not lead to any significant change in the country regarding other persons deprived of their liberty. Furthermore, even as some activists and journalists were released, the authorities regrettably arrested many others on spurious criminal and administrative charges to prevent them from carrying out their legitimate work. 39. The Special Rapporteur is deeply concerned about the intimidation facing the families and relatives of defenders who carry out their activism from abroad, which in some cases has involved criminal charges being brought against those relatives. The Special Rapporteur calls on the Government to refrain from criminalizing the important work of human rights defenders and immediately review the cases of defenders and their relatives deprived of their liberty, with a view to releasing them unconditionally.” THE LAW I. SCOPE OF THE APPLICATIONS A. Application no. 68762/14 93. The respondent Government were given notice of the application on 19 November 2014 under Article 5 §§ 1, 3 and 4 and Articles 8 § 2, 11 and 18 of the Convention. After this notice the applicant made new submissions concerning the factual developments in the case (summarised in paragraphs 29-35 above) and provided further details concerning his original complaints, taking into account those factual developments. 94. 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, cited above, § 78 ). 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). The Court notes that the applicant ’ s original application included a number of complaints related to his arrest and continuing detention, under the above-mentioned Convention provisions. His subsequent submissions did not constitute a new matter which had not been covered in the original application sent to the Government. These subsequent submissions elaborated on his initial submissions and concerned the factual developments in the proceedings relating to the applicant ’ s continued detention in the framework of the same proceedings. 95. Accordingly, given that the applicant ’ s new submissions constitute an elaboration of his original complaints to the Court on which the parties have commented, they fall within the scope of the present case. The Court will therefore proceed with the examination of the applicant ’ s complaints related to his pre-trial detention, taking into account all the relevant factual information made available to it, covering the events up to the latest extension of the applicant ’ s detention by the Nasimi District Court ’ s order of 24 October 201 4, as upheld on 29 October 201 4. B. Application no. 71200/14 96. The respondent Government were given notice of the application on 2 February 2015 which concerned the applicant ’ s complaints under Article 3 about the alleged lack of adequate medical treatment, the conditions of detention in the Baku pre-trial detention facility, the conditions of transport to and detention in the court-house on 24 October 2014. In his observations after the communication of the application to the respondent Government the applicant raised an additional issue under the same Article, namely the conditions of his transportation from and to the detention facility on 23 January 2015 and 3 February 2015. 97. In the Court ’ s view this new complaint does not concern factual developments with respect to a continuing situation and is not an elaboration of the applicant ’ s original complaint under Article 3 with respect to conditions of transportation, on which the parties have commented (see paragraphs 65-68 above). The Court does not therefore find it appropriate to examine the matter in the present context (see Seleznev v. Russia, no. 15591/03, § 56, 26 June 2008). The applicant had the opportunity to lodge new applications in respect of any other complaints relating to the subsequent events in accordance with the requirements set out in Rule 47 of the Rules of Court. II. JOINDER OF THE APPLICATIONS 98. Given that both applications have been lodged by the same applicant and have the same factual background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE MEDICAL TREATMENT 99. Relying on Articles 2 and 3 of the Convention, the applicant complained that he was not provided with adequate medical treatment in detention and that his state of health was incompatible with detention. The Court, being the master of the characterisation to be given in law to the facts of a case (see Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014 (extracts), and Radomilja and Others, cited above, § 126 ), considers that the applicant ’ s complaint should 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.” A. Admissibility 1. The parties ’ submissions 100. The Government submitted that the applicant had not exhausted domestic remedies. They argued that the applicant had failed to lodge his complaints before any national authority, including a prosecutor ’ s office and the courts. Notably, the applicant had not appealed against the prosecutor ’ s refusal to order his medical forensic examination. 101. The Government further relied on the decision of the Administrative Economic Court no. 1 dated 24 July 2012 in the case of A.I. v. the Prison Service of the Ministry of Justice, in which the court decided to grant A.I. ’ s request and to place him in hospital for treatment. In the Government ’ s opinion, the decision in question represented an example of the effectiveness of one of several available domestic remedies. 102. The applicant disagreed with the Government ’ s submissions and reiterated his complaints. He submitted that the Government had not demonstrated that there had been an effective remedy available both in theory and in practice capable of providing redress in respect of his complaints and offering reasonable prospects of success. In particular, relying on the case of Varga and Others v. Hungary ( nos. 14097/12 and 5 others, § 49, 10 March 2015 ) the applicant argued that with respect to inadequate medical treatment and conditions of detention the existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3. However, his complaints before the domestic courts under the Code of Criminal Procedure were left without examination. As regards the judicial remedy under the Code of Administrative Procedure ( “ the CAP ” ), the applicant noted that contrary to the relevant provisions of the Code of Civil Procedure setting a one - month time -limit, which had been subsequently repealed following the CAP ’ s adoption, the latter did not provide for specific time ‑ limits and therefore the remedy available in this context could not be considered as effective in theory and practice. 2. The Court assessment 103. The general principles concerning the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention have been recently summarised in the case of Yunusova and Yunusov v. Azerbaijan (no. 59620/14, § § 125-26, 2 June 2016). 104. The Court notes that it has already rejected a similar objection raised by the Government in the Yunusova and Yunusov case ( cited above ) and sees no reason to reach a different conclusion in the present case. In particular, as regards the remedy provided under the CAP, the Court observed 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. As to the domestic court ’ s decision of 24 July 2012 (see paragraph 101 above), the Court has held that a single case cited by the Government was insufficient to show the existence of settled domestic practice that would prove the effectiveness of a remedy. The Court thus concluded on the basis of the information before it that a complaint under the CAP before the domestic courts could not be considered as an effective remedy ( ibid. , § § 127-29). 105. The Court also takes cognisance of the fact that the applicant ’ s attempts to obtain redress for the alleged violations of his rights under the Code of Criminal Procedure were to no avail as the domestic courts refused to entertain his complaints for lack of jurisdiction (see paragraphs 69-71 above ). 106. The Court therefore dismisses the Government ’ s objection of non ‑ exhaustion of domestic remedies. It further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 107. The Government submitted that the applicant had been provided with adequate medical assistance and that his detention was compatible with his state of health. They referred to the applicant ’ s various medical examinations and the medical treatment provided in this connection. 108. The applicant disagreed with the Government ’ s submissions and argued that he had not been provided with the requisite medical assistance, which had led to a deterioration of his health. He further pointed out that he had not been duly informed by the authorities of the results of his medical examinations and the outpatient treatment prescribed had consisted only of painkillers which in fact had worsened his condition owing to their side effects. 2. The Court assessment 109. The Court reiterates that, although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance. The relevant case-law principles concerning the adequacy of medical assistance provided to the detainees have been recently summarised in Blokhin v. Russia [GC], no. 47152/06, §§ 136-138, 23 March 2016). 110. Turning to the present case, the Court observes that following the applicant ’ s complaints lodged on 24 October 2014, he was promptly subject to in-depth medical examinations which revealed the existence of spinal disc herniation, disc protrusions and a number of other, less serious ailments (see paragraphs 53-54 above). The applicant ’ s overall condition was considered satisfactory and did not require surgery (contrast Kutepov v. Russia, no. 13182/04, §§ 52 and 60, 5 December 2013, as regards the failure to conduct a timely diagnosis). Contrary to the applicant ’ s submissions, the Court does not discern from the circumstances of the case that his detention was marked by a significant worsening of his condition (compare, for instance, Yunusova and Yunusov, cited above, § 149, and Kutepov, cited above § 5 5 ). The applicant was examined by doctors at fairly regular intervals and his medical examinations did not reveal any serious health issues which would have required a particular form of treatment and which the authorities had ultimately failed to provide. In the Court ’ s view, the applicant did not put forward sufficient and convincing arguments disclosing any serious failings on the part of the national authorities to provide him with the requisite medical care or that the assistance provided failed to meet the standard of adequate care. 111. On the basis of the evidence before it and assessing the relevant facts as a whole, the Court cannot therefore conclude that the medical care available to the applicant was inadequate to such a degree as to cause him suffering reaching the minimum level of severity required by Article 3 of the Convention ( compare Insanov v. Azerbaijan, no. 16133/08, § 134, 14 March 2013). 112. Finally, even if the Court were to accept the applicant ’ s submission that he had not been duly informed about the results of his medical examinations (see paragraph 108 above), this alleged shortcoming alone is insufficient to conclude that the medical care was inadequate to such a degree as to amount to “ill-treatment” (compare Farhad Aliyev v. Azerbaijan, no. 37138/06, § 131, 9 November 2010). 113. Accordingly, there has been no violation of Article 3 of the Convention on account of the applicant ’ s medical treatment in detention. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION IN THE BAKU PRE-TRIAL DETENTION FACILITY 114. The applicant complained under Article 3 of the Convention about the conditions of detention in the Baku pre-trial detention facility. A. Admissibility 115. The Government submitted that the applicant had failed to exhaust domestic remedies. The applicant disagreed with the Government ’ s submissions (see paragraph 102 above ). 116. The Court reiterates that the existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3. The special importance attached by the Convention to that provision requires, in the Court ’ s view, that the Contracting Parties establish, over and above a compensatory remedy, an effective mechanism in order to put an end to any such treatment rapidly (see, for instance, Varga and Others, cited above, § 49, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 98, 10 January 2012 ). 117. The Court notes that in the present case when the applicant lodged his application with the Court complaining, inter alia, about his conditions of detention, the applicant was still in detention in allegedly poor conditions and thus required a preventive remedy capable of putting an end to the ongoing violation of his right not to be subjected to inhuman or degrading treatment, in particular, leading to his removal from inadequate prison conditions or improvement of material conditions of detention ( see Moxamed Ismaaciil and Abdirahman Warsame v. Malta, nos. 52160/13 and 52165/13, §§ 45-46, 12 January 2016 ). In the context of medical treatment, in order to be effective, a preventive remedy must, in particular, ensure a prompt and diligent handling of prisoners ’ complaints (see Ananyev and Others, cited above, § 214 ). The Court has previously expressed its concern as regards delays in the context of complaints about conditions of detention and, particularly, in respect of those concerning inadequate medical treatment, where irreparable damage may be caused over time (see Mikalauskas v. Malta, no. 4458/10, § 51, 23 July 2013). In the present case, as the Court has already noted (see paragraph 10 4 above ), the remedy under the CAP referred to by the Government did not provide for specific time-limits and the Government did not submit sufficient information showing there was a settled domestic practice of examination of such complaints in a speedy and diligent manner in order to put an end to the treatment complained of rapidly. In the Court ’ s view it would be contrary to the letter and spirit of Article 3 of the Convention to allow a person to languish in harsh conditions of detention awaiting the outcome of proceedings which are not bound by any time-limits in law or in practice and which may last for prolonged periods of time. 118. The Government did not forward any other remedy capable of preventing the alleged violation or its continuation in a timely and effective manner. 119. The Court therefore dismisses the Government ’ s objection of non-exhaustion of domestic remedies. It further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 120. The Government submitted that the conditions of the applicant ’ s detention had been compatible with Article 3 of the Convention. 121. The applicant reiterated his complaints and maintained that his conditions of detention in the Baku pre- trial detention facility amounted to inhuman and degrading treatment. 2. The Court assessment (a) General principles 122. The Court reiterates that it adopts conclusions after evaluating all the evidence, including such inferences as may flow from the facts and the parties ’ submissions. As regards the assessment of such evidence, the Court refers to its well-established standard of proof in conditions-of-detention cases which has recently been summarised in Muršić v. Croatia [GC], no. 7334/13, §§ 127-28, 20 October 2016. In particular, the Court is mindful of the objective difficulties experienced by applicants in collecting evidence to substantiate their claims about the conditions of their detention. Still, in such cases applicants must provide a detailed and consistent account of the facts complained of. Once a credible and reasonably detailed description of the allegedly degrading conditions of detention, constituting a prima facie case of ill-treatment, has been made, the burden of proof is shifted to the respondent Government, who alone have access to information capable of corroborating or refuting these allegations. They are required, in particular, to collect and produce relevant documents and provide a detailed account of an applicant ’ s conditions of detention. Furthermore, the Court also refers to the general principles and standards concerning the assessment of prison overcrowding, set out in the Muršić judgment (cited above, §§ 136-141). (b ) Conditions of detention from 9 to 12 August 2014 123. Turning to the present case, the Court notes that the applicant complained about most aspects of the conditions of his detention in the Baku pre-trial detention facility from 9 to 12 August 2014. However, there is no need for the Court to establish the veracity of each and every allegation as the starting point for its assessment will be the personal space afforded to the applicant. The Court notes that the applicant provided a detailed account of the conditions of his detention (see paragraph 45 above). Among other things, he alleged that he had been placed in an admission cell, measuring about 10 sq. m, where he had been held with eight other inmates, affording 1. 1 sq. m of personal space per inmate. The Government did not make any specific submissions concerning the applicant ’ s detention in this cell during the above period. 124. In this connection, the Court reiterates that when the personal space available to a detainee falls below 3 sq. m of floor surface, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space (ibid., § 137). However, in the present case the Government did not present any arguments that would refute the applicant ’ s allegations or rebut the above presumption of a violation of Article 3. 125. Paragraph 138 of the Muršić judgment lists the factors which must be cumulatively met in order to rebut the presumption of a violation. The first of those factors requires that “the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor” ( ibid., § 138 (1)). In the present case, the applicant was afforded only 1.1 sq. m of personal space during this period, which was so far below the required standard of 3 sq. m that it could not be considered a “minor” reduction in personal space. Furthermore, as argued by the applicant and not specifically disputed by the Government, the applicant ’ s situation was aggravated by the fact that he had to share beds with other detainees and had no access to outdoor exercise. Moreover, the cell lacked adequate ventilation and sanitary facilities ( ibid., § 139). 126. Thus, in the light of the material submitted to it by the parties and having regard to its case-law on the subject cited above, the Court accepts the applicant ’ s account and finds that, despite the relatively short period of time involved, the conditions of his detention from 9 to 12 August 2014 subjected him to hardship going beyond the unavoidable level of suffering inherent in detention and amounted to degrading treatment. 127. There has accordingly been a violation of Article 3 of the Convention on account of the applicant ’ s conditions of detention from 9 to 12 August 2014. (c ) Conditions of detention as from 12 August 2014 128. The Court observes that it is common ground between the parties that the applicant was detained with three other detainees in a cell which was designed to accommodate four persons. At the same time, the applicant disagreed with the Government as regards the measurements of the cell, which according to the applicant was “ around 12-14 sq. m ” and not 17. 82 sq. m as indicated by the Government (see paragraphs 46-49 above). However, the Court does not deem it necessary to resolve this disagreement between the parties for the following reasons. 129. Even assuming that the cell measured “12-14 sq. m ” as argued by the applicant, he disposed of at least 3 sq. m of personal space. 130. The Court reiterates that in cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue the space factor remains a weighty factor in the Court ’ s assessment of the adequacy of conditions of detention. The Court has to determine whether the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements ( ibid., § 139 ). 131. As regards the sanitary and hygiene conditions, the Court finds it established, based on the parties ’ submissions, that the toilet in the cell was separated by a door, and that cold water was available in the cells and inmates had access to a hot shower twice a week (see paragraphs 46-49 above). 132. Furthermore, it was not in dispute that there was a small window in the cell and a yard adjacent to the cell, available until 4 p.m. every day, where the applicant had unobstructed access to natural light, fresh air and outdoor exercise (see paragraphs 46 and 49 above). 133. The applicant also complained about the temperatures inside the cell. However, he did not substantiate his complaint to a sufficient degree. The Court therefore finds it difficult to determine precisely the severity of the situation. Moreover, the applicant admitted himself that the detention facility had been equipped with a heating system which had been turned on 15 November (compare Insanov v. Azerbaijan, cited above, § 125). 134. In sum, having examined the facts as presented by the parties, the Court does not exclude that the applicant may have endured some distress and hardship, as a result of his detention in the conditions described above. Nevertheless, taking into account the cumulative effect of those conditions, the Court does not consider that they reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention. 135. Accordingly, there has been no violation of Article 3 of the Convention on account of the applicant ’ s conditions of detention as from 12 August 2014. V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF TRANSPORT AND DETENTION IN THE COURT-HOUSE 136. The applicant complained under Article 3 of the Convention about the conditions of transport to and detention in the court-house on 24 October 2014. 137. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaints. The applicant disagreed with the Government ’ s submissions and maintained his complaints. 138. The Court observes that unlike the conditions of detention in the Baku pre- trial detention facility, the applicant ’ s conditions of transport and detention in the court-house on 24 October 2014 did not concern a continuing situation, but rather a situation where an alleged violation of Article 3 had already occurred, and thus was susceptible of being redressed by a compensatory remedy (see Ananyev and Others, cited above, § 221 ). The availability of such a remedy is particularly important in view of the subsidiarity principle, so that individuals are not systematically forced to refer to the Court in Strasbourg complaints that require the finding of basic facts or the calculation of monetary compensation ( ibid., § 221 ). 139. In this connection, the Court reiterates that the Law on Complaints against Acts and Omissions Infringing Individual Rights and Freedoms provides for a judicial avenue for challenging any act or omission by a public authority infringing an individual ’ s rights or freedoms (see Mammadov ( Jalaloglu ) v. Azerbaijan, no. 34445/04, § 52, 11 January 2007). Both Article 46 of the Constitution of the Republic of Azerbaijan and Article 3 of the Convention, which is directly applicable in the domestic legal system, prohibit inhuman and degrading treatment (ibid. ). Furthermore, under the CAP, which replaced the relevant provisions of the Code of Civil Procedure, an action may be brought before the courts to challenge actions of administrative organs (see Yunusova and Yunusov, cited above, §§ 96 ‑ 97). In particular, Articles 2 § 2 ( 7 ) and 3 4 § 1 of the CAP provide for the possibility to claim compensation for damage sustained as a result of unlawful actions of administrative organs. Therefore, relying on these provisions, the applicant could have lodged a lawsuit directly with the domestic courts, complaining of the alleged poor conditions of his transport to and detention in the court-house and claiming compensation for the alleged violations. However, the applicant has not attempted to do so. Moreover, he has not shown convincingly that such steps would be bound to be ineffective. 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). 140. The Court therefore accepts the Government ’ s objection and concludes that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. VI. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION 141. Relying on Article 5 §§ 1 and 3 of the Convention, the applicant complained that he had been arrested and detained in the absence of a “reasonable suspicion” that he had committed a criminal offence. He further complained that the domestic courts had failed to provide relevant and sufficient reasons justifying the necessity of his continued detention. Article 5 §§ 1 (c) and 3 of the Convention reads: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 142. The Court notes that this part of 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 143. The applicant submitted that the prosecuting authorities and the domestic courts had failed to provide reasonable and well-documented evidence that he had committed any of the criminal offences with which he had been charged. Relying, in particular, on the cases of Ilgar Mammadov v. Azerbaijan ( cited above, § 88 ) and Stepuleac v. Moldova (no. 8207/06, § 73, 6 November 2007) the applicant argued that in their applications for remand in custody the prosecuting authorities, by referring only to unspecified material of the criminal case file, had failed to show “basic ” or “relevant facts” pertaining to each alleged crime which would justify the reasonableness of his detention. Furthermore, in their decisions the domestic courts had merely reiterated the prosecuting authorities ’ arguments without specifying which information in the criminal case file had demonstrated that he might have committed the crimes of which he had been accused. 144. Notably, as regards the charges of abuse of power and illegal entrepreneurship, the applicant claimed that he had been elected and had acted as the chairman of the Association since 1999 when it had been founded. Since then, he had sent numerous letters on behalf of the Association to various state authorities, including the Ministry of Justice, concerning the registration of grant agreements signed by the applicant on behalf of the Association. The Ministry had registered these grants and informed the applicant accordingly. It had never informed the applicant that he had lacked the legal authority to act on behalf of the Association. In support of his submissions, the applicant submitted copies of the decision of the Association ’ s general assembly of 18 June 1999 to elect the applicant as its chairman as well as the letters signed by the applicant on behalf of the Association to the Ministry of Justice in relations to various grant agreements signed with different donors. 145. According to the applicant, it was only in April 2014, following the introduction of amendments to the Law on State Registration of Legal Entities and the State Register in February the same year, that the Ministry refused to register the grant agreement submitted by the applicant on the grounds that the latter could not act on behalf of the Association as he had failed to inform the Ministry of his election as chairman of the Association. The applicant ’ s further requests to register himself as its chairman were also refused by the Ministry because the letters had not been signed by the authorised person. 146. As to the applicant ’ s failure to register various grant agreements with the Ministry, the applicant argued that in fact he had applied to have them registered. Moreover, one of those agreements had been duly registered by the Ministry and published on its online database, before being removed in 2014. In this context, the applicant submitted a copy of the cached version of the database containing information on the grant agreement concluded by the Association in 2012. 147. He also argued that as the Government disputed the fact that he held any managing position in the Association and that he was its founder, he could not be suspected of having committed the crime of abuse of power. 148. Furthermore, the applicant reiterated his complaint under Article 5 § 3 and maintained that the domestic courts had failed to assess the lawfulness of his pre-trial detention, including whether there had been a reasonable suspicion, to provide “relevant and sufficient” reasons justifying his pre-trial detention and to properly consider whether alternative preventive measures could have been applied. ( b) The Government 149. The Government submitted that the applicant had been arrested on suspicion of having committed offences considered as serious crimes under national law and that his detention had been based on a reasonable suspicion. 150. The Government further argued that the applicant ’ s detention had been justified and that the domestic courts had given sufficient and relevant reasons for his detention. As regards the applicant ’ s requests for release on bail or replacement of his pre-trial detention by house arrest, they had not been granted by the domestic courts as there had been a risk that, if not detained, the applicant would abscond and influence the criminal proceedings. (c) Third parties 151. Third-party comments submitted by the Council of Europe Commissioner for Human Rights, as well as by the Helsinki Foundation for Human Rights, the Human Rights House Foundation and Freedom Now concerned the situation of human rights defenders in Azerbaijan and the difficulties faced by NGOs as a result of the recent legislative amendments. A detailed description of the above-mentioned comments can be found in the Court ’ s judgment in Rasul Jafarov (cited above, §§ 99-113). 2. The Court ’ s assessment (a) General principles 152. The applicable general principles were recently summarised by the Court in the case of Rasul Jafarov (cited above, §§ 114-18 ). Notably, 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. In addition, the existence of such a suspicion requires that the facts relied on can reasonably be considered criminal behaviour under domestic law. Thus, clearly there could not be a “reasonable suspicion” if the acts held against a detained person did not constitute an offence at the time they were committed. (b) Application to the present case 153. The Court observes that the charges brought against the applicant in this case (see paragraphs 23 and 36 above) are similar to those pressed against the applicant in the case of Rasul Jafarov (cited above, §§ 16 and 30). Like the latter case, the applicant was charged with various crimes on two occasions : on 8 August 2014 – with crimes of illegal entrepreneurship, tax evasion and abuse of power – and on 12 December 2014 – with crimes of embezzlement and forgery by an official. The only difference in the present case lies in the fact that unlike the NGO co ‑ founded by Mr Jafarov, the applicant ’ s Association was formally registered with the Ministry of Justice and the applicant was accused of failing to inform that Ministry of his being appointed chairman of the Association. The Court will proceed to examine the facts giving rise to the above charges in turn. It will do so in the light of the harsh and restrictive legislative framework governing the registration and operation of non ‑ governmental organisations ( ibid. , § 120). ( i ) Charges of abuse of power, illegal entrepreneurship and tax evasion 154. The Court considers that, as in the case of Rasul Jafarov, the description of the three original charges brought against the applicant on 8 August 2014 lacked a certain level of coherence, order and clarity that could be expected of a document of this nature. In particular, the description consisted of a single sentence spanning about one page of printed text ( ibid., § 121). Notably, it can be discerned from that description that the applicant was accused of failing to inform the relevant executive authority of his appointment as chairman of the Association in accordance with the Law on State Registration and signing various grant agreements on behalf of the Association without having the legal authority to do so. 155. As regards the charges of abuse of power, the Court notes that the applicant submitted a copy of the decision of the Association ’ s annual general meeting of 18 June 1999 to elect him chairman of the Association. The authenticity of this document was not disputed by the Government. Furthermore, the applicant argued that following the introduction of amendments to the Law on State Registration which required, inter alia, reporting of changes to founding charters of legal entities, he attempted to inform the Ministry of Justice of this fact but to no avail. The Government also did not refute this claim or submit any information to the contrary. 156. Furthermore, it is not clear from the domestic decisions and the Government ’ submissions why the applicant had to inform the executive authority of his appointment as chairman of the Association given that this fact had taken place long before the introduction of relevant legislative amendments providing for such reporting obligations. 157. However, even leaving aside these discrepancies and assuming that the applicant had failed to duly inform the authorities of his election as chairman, the Court does not see how such a failure of a purely administrative nature could have given rise to a reasonable suspicion that he had committed a criminal offence. 158. Turning to the facts which constituted the basis for the charges of tax evasion and illegal entrepreneurship, specifically the applicant ’ s failure to register the grant agreements in accordance with domestic law, the applicant argued that he had duly informed the authorities and submitted copies of the Association ’ s letters to the Ministry of Justice asking the latter to register certain grant agreements, and extracts from the Ministry ’ s database concerning the registration of one of the grants. The Government did not submit any comments with respect to these documents. 159. However, even assuming that the applicant failed to comply with the relevant procedure, the Court restates that in the case of Rasul Jafarov ( cited above ) it held as follows: “ 128. ... Having regard to the relevant legislation (see paragraphs 69 and 71 above), the Court notes that the requirement to submit grants for registration to the Ministry of Justice was merely a reporting requirement, and not a prerequisite for legal characterisation of the received financial assistance as a “grant”. Failure to meet this reporting requirement was an administrative offence specifically proscribed by Article 223-1.1 of the CAO and punishable by a fine (only after February 2014 in the case of individual recipients). Non-compliance with this reporting requirement had no effect on the nature of a grant agreement defined and regulated by Articles 1.1 and 4.1 of the Law on Grants (see paragraphs 68-69 above), or on the characterisation of the activities for which the grant was used as non-commercial. 129. However, from the documents in the case file it appears that, apart from relying on the applicant ’ s alleged failure to comply with the reporting requirement to register the grants, which in itself was not criminalised under the domestic law, the prosecuting authorities never demonstrated the existence of any information or evidence showing that the applicant might have used the money for generating profit or for purposes other than those indicated in the grant agreements, or that the purposes indicated in the grant agreements were both commercial and illegal. Likewise, the Government failed to demonstrate that any other witness statements, documents or other evidence or information existed which could serve as the basis for the suspicion that the applicant had engaged in criminal activities. Furthermore, it has not been demonstrated that any such evidence was ever presented by the prosecuting authorities to the domestic courts which ruled on the applicant ’ s continued detention. 130. In such circumstances, the Court finds that the applicant could not have been reasonably suspected of having committed the criminal offence of “illegal entrepreneurship” under Article 192.2.2 of the Criminal Code, because there were no facts, information or evidence showing that he had engaged in commercial activity or the offence of “tax evasion” under Article 213 of the Criminal Code, as in the absence of such commercial activity there could be no taxable profit under the simplified regime. Furthermore, the above-mentioned facts were not sufficient to give rise to a suspicion that the applicant had sought to “obtain unlawful advantage for himself or for third parties”, which was one of the constituent elements of the criminal offence of “abuse of power” under Article 308 of the Criminal Code ... ” 160. The Court has no reason to hold otherwise in the present case as the facts relied on by the domestic authorities to press charges at issue were identical in nature and there is nothing in the Government ’ s submissions which would enable the Court to reach a different conclusion. (ii) Charges of embezzlement and forgery 161. As for the additional charges of embezzlement and forgery brought against the applicant on 12 December 2014, the Court notes that they were brought after the latest domestic court order of 24 October 2014 extending the applicant ’ s pre-trial detention. As such, all previous decisions ordering and extending the applicant ’ s pre-trial detention had been based solely on the original charges, and therefore the new charges were of no significance to the assessment of the reasonableness of the suspicion underpinning the applicant ’ s detention during the period falling within the scope of the present case. 162. In any event the Court observes that as regards the charges of embezzlement, the prosecuting authorities relied on the fact that the applicant transferred various amounts from the Association ’ s bank accounts to the account of one of the Association ’ s employees with a view to their subsequent withdrawing it. In this regard, the Court notes that the money was given to the applicant voluntarily by donors under the grant agreements. There was no information in the domestic decisions that the donors had ever complained about misappropriation of the sums by the applicant and that they had joined the criminal proceedings against the applicant as the victims of the crime. 163. As to the charge of forgery, the Court observes that the applicant was accused of inserting false information in the Association ’ s cashbook concerning payments to various employees. However, the Court notes that there is nothing in the domestic decisions or the Government ’ s submissions which would support this accusation and satisfy an objective observer that this information might have been false. (iii) Conclusion 164. Having regard to the above considerations, the Court finds that the material put before it does not meet the minimum standard set by Article 5 § 1 (c) of the Convention for the reasonableness of a suspicion required for an individual ’ s arrest and continued detention. Accordingly, the Court concludes that during the period in question the applicant was deprived of his liberty in the absence of a “reasonable suspicion” of his having committed a criminal offence. 165. There has accordingly been a violation of Article 5 § 1 of the Convention. 166. The above finding makes it redundant to assess whether the reasons given by the domestic courts for the applicant ’ s continued detention were based on “relevant and sufficient” grounds, as required by Article 5 § 3 of the Convention. Therefore, the Court does not consider it necessary to examine separately any issues under Article 5 § 3 of the Convention (see similarly Rasul Jafarov, cited above, § 135). VII. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 167. The applicant complained that the domestic courts had failed to address his specific arguments in support of his release in breach of Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 168. 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 169. The applicant reiterated his complaint and maintained that he had not been afforded an effective judicial review of the lawfulness of his detention. 170. The Government, referring to the relevant provisions of the Code of Criminal Procedure, contested that argument and argued that the applicant had had at his disposal an effective procedure by which he could have challenged the lawfulness of his detention. 2. The Court ’ s assessment (a) General principles 171. The relevant general principles were recently reiterated in Rasul Jafarov, cited above, §§ 140-42. In particular, Article 5 § 4 of the Convention entitles arrested or detained persons to a review of the procedural and substantive conditions which are essential for the “lawfulness” – in Convention terms – of the deprivation of their liberty. This means that the competent court has to consider not only compliance with the procedural requirements of domestic law, but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention. (b) Application to the present case 172. The Court observes that, as in the case of Rasul Jafarov, cited above, the domestic courts in the present case consistently failed, in the exact same manner, to verify the existence of reasonable suspicion underpinning the applicant ’ s arrest and detention and the legitimacy of its purpose. In essence, the role of the domestic courts was limited to automatic endorsement of the prosecution ’ s applications without any genuine and independent review of the “lawfulness” of the applicant ’ s detention. 173. Having regard to the above, the Court concludes that the applicant was not afforded proper judicial review of the lawfulness of his detention. Accordingly, there has been a violation of Article 5 § 4 of the Convention ( ibid., §§ 143-44). VIII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 174. The applicant complained under Article 8 of the Convention of the search of his home and of the Association ’ s office and the seizure of all the documents and electronic items. 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.” A. Admissibility 175. 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 176. The applicant argued that the interference with his right to respect for his private and family life, home and correspondence had not been prescribed by law and had not been necessary in a democratic society. 177. The Government maintained that the search at the applicant ’ s home and the Association ’ s office had been conducted in accordance with domestic law and had been necessary in the interest of the criminal investigation of the applicant ’ s case in order collect evidence. The Government also claimed that on 25 October 2014 the prosecuting authorities had returned to the applicant ’ s lawyer a large part of the seized documents, including those related to his work before the Court. 2. The Court ’ s assessment (a) Whether there has been an interference 178. In the present case, the search and seizure were conducted in the applicant ’ s home (see paragraph 38 above), as well as the premises of the Association (see paragraphs 37 and 39 above). The Court notes that the applicant was the chairman of the Association (see paragraph 8 above) and that it is undisputed that he used the premises of the Association for conducting his professional activities as a lawyer. The documents seized from the Association ’ s premises included case files concerning over a hundred applications pending before the Court and documents related to the proceedings before the domestic courts, in which the applicant acted as a legal representative (see paragraph 39 above). According to the Court ’ s case-law, the search of a lawyer ’ s office, including documents and electronic data, amounts to an interference with his “private life”, “home” and “correspondence” (see Niemietz v. Germany, 16 December 1992, §§ 29 ‑ 33, Series A no. 251 ‑ B; Sallinen and Others v. Finland, no. 50882/99, §§ 70-72, 27 September 2005; and Aleksanyan v. Russia, no. 46468/06, § 212, 22 December 2008 ). Accordingly, the search and seizure both in the home and office of the applicant constituted an interference with his rights under Article 8 of the Convention. (b) Whether the interference was justified 179. The Court reiterates that the essential object and purpose of Article 8 of the Convention is to protect the individual against arbitrary interference by the public authorities (see, for example, Niemietz, cited above, § 31). Such interference is in breach of Article 8 of the Convention unless it was “in accordance with the law”, pursued a legitimate aim as defined in the second paragraph of that Article, and was “necessary in a democratic society” to achieve that aim. ( i ) Lawfulness 180. As regards the question of whether the interference was “in accordance with the law”, the Court does not find it necessary to determine this issue since in any event the impugned interference breaches Article 8 for other reasons outlined below. (ii) Legitimate aim 181. The Court has repeatedly held that persecution and harassment of members of the legal profession strikes at the very heart of the Convention system. Therefore the searching of lawyers ’ premises should be subject to especially strict scrutiny (see Annagi Hajibeyli v. Azerbaijan, no. 2204/11, § 68, 22 October 2015, and Elci and Others v. Turkey, nos. 23145/93 and 25091/94, § 669, 13 November 2003). 182. With that in mind the Court reiterates that the exceptions to the individual ’ s right to respect for his or her private and family life, his or her home and his or her correspondence listed in Article 8 § 2 must be narrowly interpreted. The enumeration of the exceptions as listed in Article 8 § 2 is exhaustive and their definition is restrictive. For it to be compatible with the Convention, a limitation of this right must, in particular, pursue an aim that can be linked to one of those listed in this provision (see Parrillo v. Italy [GC], no. 46470/11, § 163, ECHR 2015 ). 183. Turning to the present case, the Court observes that the Government argued that the search had been aimed at investigating the applicant ’ s case and collecting evidence, which can be linked to the aim of prevention of crime within the meaning of Article 8 § 2. 184. In this context, the Court notes that the search at the applicant ’ s home and office had been authorised by the Nasimi District Court a day before the applicant was formally charged with the criminal offences. The search and seizure order of 7 August 2014 was issued by the court following a request by the prosecution (see paragraphs 36-39 above). The court justified the search by merely referring in vague terms to the criminal investigation into “breaches of legislation discovered in the activities of a number of non-governmental organisations” without asserting any specific facts related to the suspected crimes of abuse of power and forgery (see paragraph 39 above ). It does not therefore appear from the court ’ s succinct decision that it satisfied itself that there were reasonable grounds for suspecting that the commission of these crimes had occurred and that the relevant evidence might be found in this regard at the premises to be searched ( compare Buck v. Germany, no. 41604/98, § 41, ECHR 2005 ‑ IV ). 185. Furthermore, the Court has found that the administrative irregularities allegedly committed by the applicant with respect to the receipt and use of the grants by the Association, for which the applicant was prosecuted and detained during the period at issue, could not give rise to liability under criminal law (see paragraphs 159-60 and 1 64 above ). 186. Thus, having regard to the restrictive definition of the exceptions provided by Article 8 § 2 and the rigorous supervision by the Court, it cannot accept that the interference complained of pursued the legitimate aim of prevention of crime within the meaning of this Article. The Government has not put forward and the Court does not see any other justification for the interference at issue. 187. Accordingly, the Court finds that, in the particular circumstances of the present case, the search and seizure at the applicant ’ s home and office did not pursue any of the legitimate aims enumerated in paragraph 2 of Article 8. 188. Where it has been shown that an interference did not pursue a “legitimate aim” it is not necessary to investigate whether it was “necessary in a democratic society” (see, mutatis mutandis, Khuzhin and Others v. Russia, no. 13470/02, § § 117-18, 23 October 2008 ). 189. There has therefore been a violation of Article 8 of the Convention. IX. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 5 AND 8 190. Relying on Article 18 of the Convention, the applicant complained that his Convention rights had been restricted for purposes other than those prescribed in the Convention. In particular, his deprivation of liberty and the seizure of the files relating to the pending cases before the Court had the purpose of punishing and silencing him as a critic of the Government and a human-rights defender and to prevent him from representing numerous applicants before the Court in high-profile cases relating to election irregularities and deprivations of property. Article 18 provides: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” A. Admissibility 191. 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 192. The applicant maintained that the restrictions applied in his case were aimed at punishing and silencing him as a critic of the Government, a human-rights defender and a practicing lawyer before the Court, thereby neutralising him and preventing him from continuing human rights activities. He argued that the totality of the evidence in the present case was sufficient to rebut the general presumption that public authorities had acted in good faith. The facts of the case demonstrated convincingly that the real aim of the authorities had not been the same as that proclaimed. 193. The applicant submitted that the situation in his case was similar to that of Ilgar Mammadov in that the authorities had acted in the same manner. 194. Moreover, his detention as well as the search and seizure of his home and office should be viewed as part of persecution of human-rights defenders and NGO activists in the country which had begun in December 2013 and included their arrests, travel bans, freezing of their bank accounts and disparaging public statements by various high-ranking officials labelling them as “traitors”. The very public support from a number of State officials for his prosecution and the prosecution of others indicated that the measures taken by the authorities had had political motives. (b) The Government 195. Relying on the cases of Khodorkovskiy v. Russia (no. 5829/04, 31 May 2011) and Khodorkovskiy and Lebedev v. Russia (nos. 11082 /06 and 13772/05, 25 July 2013) the Government argued that the applicant ’ s allegations were too wide and far-reaching. He did not complain of an isolated incident, but tried to demonstrate that the whole legal machinery of the respondent State had been misused ab initio, and that from beginning to end the authorities had been acting in bad faith and with blatant disregard for the Convention. In essence, the applicant was trying to persuade the Court that everything in his case had been contrary to the Convention, and that the criminal proceedings against him had therefore been invalid. That allegation was a serious one, because it assailed the general presumption of good faith on the part of the public authorities and required particularly weighty evidence in support. None of the accusations against the applicant had been political. He had not been an opposition leader or a public official. The acts which had been imputed to him had not been related to his participation in political life, real or imaginary – he had been prosecuted for common criminal offences, such as tax evasion and fraud. The Government submitted that the restrictions imposed by the State in the present case pursuant to Article 5 and 8 of the Convention had not been applied for any purpose other than one envisaged by those provisions, and strictly for the proper investigation of serious criminal offences allegedly committed by the applicant. (c) Third parties 196. Submissions by the third parties, which also pertain to the complaint under Article 18 of the Convention, are referred to in paragraph 151 above. 2. The Court ’ s assessment (a) General principles 197. The general principles concerning the interpretation and application of Article 18 of the Convention have recently been set out by the Grand Chamber in its judgment in Merabishvili v. Georgia ([GC], no. 72508/13, 28 November 2017, §§ 287-317 ) and may be summarised as follows. 198. In a similar way to Article 14, Article 18 of the Convention has no independent existence. It can only be applied in conjunction with an Article of the Convention or the Protocols thereto which sets out or qualifies the rights and freedoms that the High Contracting Parties have undertaken to secure to those under their jurisdiction. Article 18 prohibits the High Contracting Parties from restricting the rights and freedoms enshrined in the Convention for purposes not prescribed by the Convention itself, and to this extent it is autonomous. Therefore, as is also the position in regard to Article 14, there can be a breach of Article 18 even if there is no breach of the Article in conjunction with which it applies (ibid., §§ 287-88). 199. The mere fact that a restriction of a Convention right or freedom does not meet all the requirements of the clause that permits it does not necessarily raise an issue under Article 18. Separate examination of a complaint under that Article is only warranted if the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case ( ibid., § 291). 200. A right or freedom is sometimes restricted solely for a purpose which is not prescribed by the Convention. But it is equally possible that a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention; in other words, that it pursues a plurality of purposes. In these circumstances, a restriction can be compatible with the substantive Convention provision which authorises it because it pursues an aim permissible under that provision, but still infringe Article 18 because it was chiefly meant for another purpose that is not prescribed by the Convention; in other words, if that other purpose was predominant. Conversely, if the prescribed purpose was the main one, the restriction does not run counter to Article 18 even if it also pursues another purpose. Which purpose is predominant in a given case depends on all the circumstances. In assessing that point, the Court will have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, and bear in mind that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law (ibid., §§ 292-307). 201. As regards the questions of proof, the Court can and should adhere to its usual approach to proof rather than special rules ( ibid., § 310). 202. The first aspect of that approach is that, as a general rule, the burden of proof is not borne by one or the other party because the Court examines all material before it irrespective of its origin, and because it can, if necessary, obtain material of its own motion (ibid., § 311). 203. The second aspect of the Court ’ s approach is that the standard of proof before it is “beyond reasonable doubt”. That standard, however, is not co-extensive with that of the national legal systems which employ it. First, such proof can follow from the coexistence of sufficiently strong, clear and concordant inferences or similar unrebutted presumptions of fact. Secondly, the level of persuasion required to reach a conclusion is intrinsically linked to the specificity of the facts, the nature of the allegation made, and the Convention right at stake (ibid., § 314). 204. The third aspect of the Court ’ s approach is that the Court is free to assess not only the admissibility and relevance but also the probative value of each item of evidence before it. When assessing evidence it is not bound by formulae and adopts the conclusions supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions. The Court is also sensitive to any potential evidentiary difficulties encountered by a party. There is therefore no reason for the Court to restrict itself to direct proof in relation to complaints under Article 18 of the Convention or to apply a special standard of proof to such allegations (ibid., §§ 315-16). 205. Circumstantial evidence in this context means information about the primary facts, or contextual facts or sequences of events which can form the basis for inferences about the primary facts. Reports or statements by international observers, non-governmental organisations or the media, or the decisions of other national or international courts are often taken into account, in particular, to shed light on the facts, or to corroborate findings made by the Court (ibid., § 317). (b) Application to the present case 206. At the outset, the Court notes that it has already found that the applicant ’ s arrest and pre-trial detention were not carried out for a purpose prescribed under Article 5 § 1 (c) of the Convention as the charges against him were not based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention (see paragraph 164 above). 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). 207. Indeed, the Court observes that the combination of the relevant case-specific facts in the applicant ’ s case is similar to that of Rasul Jafarov (cited above) where proof of ulterior purpose derived from a juxtaposition of the lack of suspicion with contextual factors. 208. Firstly, as regards the applicant ’ s status, the Court notes that it is not disputed between the parties that the applicant is a human-rights defender and, more specifically, a human-rights lawyer (see also § 1 of the Parliamentary Assembly ’ s Resolution 2225 (2018) cited in paragraph 91 above). In line with the international materials cited above (see paragraphs 88-92 above ) the Court attaches particular importance to the special role of human-rights defenders in promoting and defending human rights, including in close cooperation with the Council of Europe, and their contribution to the protection of human rights in the member States. The Court also takes note of the fact that the applicant is the legal representative before the Court in a large number of cases and has submitted on behalf of the Association communications to the Committee of Ministers concerning the execution of the Court ’ s judgments. 209. Secondly, as far as the charges against the applicant are concerned, the Court has found above that they were not based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention (see paragraphs 164-165 above). The applicant was charged with serious criminal offences whose core constituent elements could not reasonably be found in the existing facts. 210. Thirdly, the Court notes that the applicant ’ s arrest was accompanied by stigmatising statements made by public officials against the local NGOs and their leaders, including the applicant, who were labeled as “traitors” and a “fifth column” (see paragraphs 12-17 above). These statements did not simply concern an alleged breach of domestic legislation on NGOs and grants, but rather had the purpose of delegitimising their work. 211. Fourthly, as regards the search of the applicant ’ s home and office, the Court has found above that it did not pursue any of the legitimate aims enumerated in paragraph 2 of Article 8 of the Convention (see paragraph 187 above). Furthermore, the Court is struck by the arbitrary manner in which the search and seizure took place at the applicant ’ s home and office. Notably, during the search at his office not only did the authorities seize documents related to the Association ’ s activities, but they also took case files covered by lawyer-client confidentiality, in particular, those related to the applications pending before the Court, in disregard of legal professional privilege. In this connection, the Court reiterates that it has already concluded in the case of Annagi Hajibeyli ( cited above, §§ 64-79) that the respondent State has failed to comply with its obligations under Article 34 of the Convention on account of the seizure from the office of the applicant in the present case of the entire case file relating to Mr Hajibeyli ’ s pending case before the Court. 212. Fifthly, the general context of the increasingly harsh and restrictive legislative regulation of NGO activity and funding cannot simply be ignored in a case like the present one, where such a situation has led to an NGO activist being prosecuted for an alleged failure to comply with legal formalities of an administrative nature while carrying out his work (see Rasul Jafarov, cited above, § 159). The Court reiterates that the way in which national legislation enshrines the freedom of association and its practical application by the authorities reveal the state of democracy in the country concerned ( see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 52, ECHR 2009 ). It goes without saying that, while the States may have legitimate reasons to monitor financial operations in accordance with international law with a view to preventing money laundering and terrorism financing, the ability of an association to receive and use funding in order to be able to promote and defend its cause constitutes an integral part of the right to freedom of association. 213. The Court also notes the repercussions the applicant ’ s detention and the seizure of the documents related to the Association activities had on the exercise of his right to freedom of association. As a result of the de facto criminalisation of his activities and the measures taken against him in this context, which, as the Court has found above, did not have any legitimate purpose, the applicant was prevented from conducting his NGO activity in any meaningful way. Moreover, the Court cannot lose sight of the chilling effect of those measures on the civil society at large, whose members often act collectively within NGOs and who, for fear of prosecution, may be discouraged from continuing their work of promoting and defending human rights. 214. In this connection, the applicant ’ s situation cannot be viewed in isolation. Several notable human-rights activists who have cooperated with international organisations for the protection of human rights, including, most notably, the Council of Europe, have been similarly arrested and charged with serious criminal offences entailing heavy prison sentences. These facts support the applicant ’ s and the third parties ’ argument that the measures taken against him were part of a larger campaign to “crack down on human-rights defenders in Azerbaijan, which had intensified over the summer of 2014” (compare Rasul Jafarov, cited above, § 161). 215. The totality of the above circumstances – specifically, the applicant ’ s status as a lawyer representing applicants before the Convention institutions, the nature and substance of the charges brought against him, the statements made by public officials, the arbitrary manner in which the search and seizure took place, the general context of the legislative regulation of NGO activity, the repercussions on the applicant ’ s right to freedom of association and the general situation concerning human-rights activists in the country – indicates that the authorities ’ actions were driven by improper reasons and the actual purpose of the impugned measures was to silence and to punish the applicant for his activities in the area of human rights as well as to prevent him from continuing those activities (see Rasul Jafarov, cited above, §§ 157- 62). In the light of these considerations, the Court finds that the restrictions of the applicant ’ s rights were imposed for purposes other than those prescribed by Articles 5 § 1 (c) and 8 § 2 of the Convention. 216. There has accordingly been a violation of Article 18 of the Convention taken in conjunction with Articles 5 and 8. X. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 217. The applicant further complained under Article 11 that his right to freedom of association had been violated because his arrest and detention had been intended to silence him as an NGO activist. Article 11 of the Convention provides: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 218. 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. 219. However, having regard to its conclusions under Article 5 §§ 1 and 4 of the Convention and Article 18 of the Convention with regard to the same set of facts, the Court considers that it is unnecessary to examine separately the complaint under Article 11 of the Convention ( compare Rasul Jafarov, cited above, § 170). XI. APPLICATION OF ARTICLE 46 OF THE CONVENTION 220. Having regard to the nature of the violations found by the present judgment and the recurrence of similar violations, the Court finds it appropriate to examine the present case under Article 46 of the Convention which reads as follows : “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ...” 221. The Court reiterates that, by virtue of Article 46 of the Convention, the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, with execution being supervised by the Committee of Ministers of the Council of Europe. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation, whether or not the applicant has requested just satisfaction, to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46, provided that such means are compatible with the conclusions and the spirit of the Court ’ s judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Broniowski v. Poland [GC], no. 31443/96, § 192, ECHR 2004-V; Lukenda v. Slovenia, no. 23032/02, §§ 89-98, ECHR 2005 ‑ X; Apostol v. Georgia, no. 40765/02, §§ 70-71, ECHR 2006 ‑ XIV; Abuyeva and Others v. Russia, no. 27065/05, § § 235-43, 2 December 2010; Emre v. Switzerland (no. 2), no. 5056/10, § § 67-68, 11 October 2011; and McCaughey and Others v. the United Kingdom, no. 43098/09, § 142, ECHR 2013). 222. However, with a view to assisting the respondent State fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see, for example, Abuyeva and Others v. Russia, cited above, § 237, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 159, ECHR 2014 ). The Court ’ s concern is to facilitate the rapid and effective correction of a defect identified in the national system of human-rights protection. Once such a defect has been identified, the national authorities have the task, subject to supervision by the Committee of Ministers, of taking – retrospectively if necessary – the necessary measures of redress in accordance with the principle of subsidiarity under the Convention, so that the Court does not have to reiterate its finding of a violation in a series of comparable cases (see Baybaşin v. the Netherlands, no. 13600/02, § 79, 7 June 2007). 223. In the present case the Court has found that the measures taken against the applicant, in particular his arrest and pre-trial detention were aimed at silencing and punishing him for his activities in the area of human rights as well as at preventing him from continuing his work as a human ‑ rights defender in breach of Article 18 of the Convention. The Court notes that it has already found similar violations in the cases of Ilgar Mammadov, Rasul Jafarov (both cited above ), Mammadli v. Azerbaijan ( no. 47145/14, 19 April 2018 ) and Rashad Hasanov and Others v. Azerbaijan ( nos. 48653/13 and 3 others, 7 June 2018 ). In the latter cases the Court concluded that the actual purpose of the arrest and pre-trial detention was either to silence and punish the applicants for criticising the Government or for their active social and political engagement ( see Ilgar Mammadov, cited above, § 143, and Rashad Hasanov and Others, cited above, § 125, respectively ) or to silence and punish the applicants for their activities in the area of human rights or in the area of electoral monitoring ( see Rasul Jafarov, cited above, § 162, and Mammadli, cited above, § 162, respectively ). The Court notes with concern that the events under examination in all five of these cases cannot be considered as isolated incidents. The reasons for the above violations found are similar and inter ‑ connected. In fact, these judgments reflect a troubling 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 defiance of the rule of law. This pattern of the use of arbitrary detention in retaliation for the exercise of the fundamental rights to freedom of expression and association has also been the subject of comment by the Council of Europe Commissioner for Human Rights ( see paragraph 1 51 above ) and other international human-rights organisations (see paragraphs 78-80 above ). The Court accordingly finds that the actions of the State stemming from this pattern may give rise to further repetitive applications. Indeed, the Court cannot overlook in this regard the fact that a number of applications raising issues similar to those outlined above have either been communicated to the Azerbaijani Government or are currently pending before the Court. 224. The Court further considers it important to stress, as a matter of concern, that the domestic courts, being the ultimate guardians of the rule of law, systematically failed to protect the applicants against arbitrary arrest and continued pre-trial detention in the cases which resulted in the judgments adopted by the Court, limiting their role to one of mere automatic endorsement of the prosecution ’ s applications to detain the applicants without any genuine judicial oversight (see paragraph 1 72 above; Ilgar Mammadov, cited above, § 118; and Rasul Jafarov, cited above, § 143). 225. Against this background, the Court also finds it necessary to restate that as the Convention is a constitutional instrument of European public order, the States Parties are required, in that context, to ensure a level of scrutiny of Convention compliance which, at the very least, preserves the foundations of that public order. One of the fundamental components of European public order is the principle of the rule of law, and arbitrariness constitutes the negation of that principle ( see Al- Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 145, ECHR 2016 ). This is all the more so since the Statute of the Council of Europe, an organisation of which each of the States Parties to the Convention is a Member, refers in two places to the rule of law: first in the Preamble, where the signatory Governments affirm their devotion to this principle, and secondly in Article 3 which provides that “ every Member of the Council of Europe must accept the principle of the rule of law ... ” (see Golder v. the United Kingdom, 21 February 1975, § 34, Series A no. 18). 226. In view of the above, it falls to the Committee of Ministers, acting under Article 46 of the Convention, to continue to address the issue of what may be required of the respondent Government by way of compliance, through both individual and general measures (see McCaughey and Others v. the United Kingdom, cited above, § 145 ). However, the Court considers that, having regard to the specific group of individuals affected by the above-mentioned pattern in breach of Article 18, the necessary general measures to be taken by the respondent State must focus, as a matter of priority, on the protection of critics of the government, civil society activists and human-rights defenders against arbitrary arrest and detention. The measures to be taken must ensure the eradication of retaliatory prosecutions and misuse of criminal law against this group of individuals and the non ‑ repetition of similar practices in the future. 227. As regards the individual measures to be taken in response to the Court ’ s judgment, their primary aim is to achieve restitutio in integrum, that is, to put an end to the breach of the Convention and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see, among other authorities, Savriddin Dzhurayev v. Russia, no. 71386/10, § 248, ECHR 2013 (extracts)). The individual measures to be taken by the respondent State in order to discharge its obligations under Article 46 of the Convention must be determined in the light of the terms of the Court ’ s judgment and, in particular, with due regard to its conclusions in respect of the retaliatory nature of the measures taken against the applicant with a view to punishing him for his activities in the area of human rights as well as to prevent him from continuing his work as a human-rights defender (see paragraph 215 above). 228. Given the variety of means available to achieve restitutio in integrum and the nature of the issues involved, the Committee of Ministers is better placed than the Court to assess the specific measures to be taken in the present case. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State and with due regard to the applicant ’ s evolving situation, the adoption of measures aimed, among others, at restoring his professional activities. Those measures should be feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations found by the Court, and they should put the applicant, as far as possible, in the position in which he had been before his arrest (see, mutatis mutandis, Kim v. Russia, no. 44260/13, § 74, 17 July 2014). XII. 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 applicant claimed 4 0,000 euros (EUR) in respect of non ‑ pecuniary damage. 231. The Government submitted that the amount claimed by the applicant was unsubstantiated and excessive. 232. The Court observes that it has found violations of Articles 3, 5, 8 and 18 of the Convention. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations, and that compensation has thus to be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 20,000 under this head, plus any tax that may be chargeable on this amount. B. Costs and expenses 233. The applicant claimed EUR 4, 0 00 for legal fees (namely EUR 2, 0 00 for Mr J. Javadov ’ s legal services and EUR 2,000 for Ms R. Remezaite ’ s legal services), EUR 150 for postal costs and EUR 601.25 for translation expenses incurred before the Court in relation to the proceedings in application no. 68762/14. In support of his claim, he submitted copies of the contract for legal services concluded with Mr Javadov, a breakdown of the services provided by Mr Javadov, an invoice for the hours spent by Ms Remezaite on the case, an invoice for the translation of documents related to the domestic proceedings, and receipts for postal services. 234. The applicant claimed EUR 4,200 for legal fees (specifically EUR 2,200 for Mr J. Javadov ’ s legal services and EUR 2,000 for Ms R. Remezaite ’ s legal services) and 1,059.90 pounds sterling (GBP) for translation expenses in relation to the proceedings in application no. 71200/14. In support of his claim, he submitted copies of an invoice for the hours spent by Ms Remezaite on the case and invoices for translation services. In his submission concerning claims for just satisfaction the applicant also referred to the contract for legal services concluded with Mr Javadov and an invoice for the legal services provided by Mr Javadov. However, these documents were not enclosed by the applicant with his submissions. 235. The Government argued that the claims for costs and expenses had not been properly substantiated by relevant supporting documents. In particular, they noted that the applicant had failed to submit documents concerning the costs sustained in relation to the legal services provided by Mr Javadov in application no. 71200/14. They also submitted that the amounts claimed for translation costs had not been necessarily incurred and asked the Court to apply a strict approach in respect of the applicant ’ s claims. 236. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim in respect of the legal fees for the services provided by Mr Javadov for lack of proper substantiation, the claims in respect of translation fees for lack of proper itemisation, and considers it reasonable to award the remaining part of the amounts claimed in respect of legal fees incurred before the Court and postal costs. Accordingly, the Court awards the total sum of EUR 6,150 to cover for the proceedings before the Court. C. Default interest 237. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held in particular that there had been a violation of Article 5 § 1 of the Convention owing to the lack of a reasonable suspicion that the applicant had committed a criminal offence as grounds for his detention. It also held that there had been a violation of Article 5 § 4 on account of the lack of a proper judicial review of the lawfulness of his detention. Lastly, the Court held that there had been a violation of Article 18 in conjunction with Article 5, finding that the measures taken against the applicant had been aimed at silencing and punishing him for his human rights activities rather than for one of the legitimate purposes under the Convention. The Court noted in particular that this case was part of “a troubling pattern of arbitrary arrest and detention of critics of the Government, civil society activists and human rights defenders”. It called on the Government to take steps to protect such people, ensuring that there were no more retaliatory prosecutions and misuse of the criminal law against them. |
722 | Access to court | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Popular initiatives 20. Article 139 of the Federal Constitution of 18 April 1999 (formerly Articles 118, 121 to 123 of the Federal Constitution of 29 May 1874) provides that 100,000 citizens may seek, by way of a constitutional or popular initiative, an amendment to the Constitution on any topic. Popular initiatives do not originate from Parliament or the government, but from the citizens themselves. 21. On 18 February 1979 the popular initiative on the “Safeguard of the People's Rights and the Safety of the Construction and Operation of Nuclear Installations” was rejected by a majority of the people and the cantons. In 1981 the popular initiative “For the Interruption of the Nuclear Power Programme” failed, because the necessary 100,000 signatures could not be collected within eighteen months. On 23 September 1984 the people and the cantons rejected the initiative “For a Future without Further Nuclear Power Plants”. On 23 September 1990 the popular initiative “Stop the Construction of Nuclear Power Plants (Moratorium)” was adopted, while on the same date the initiative “For the Progressive Abandonment of Nuclear Energy” was rejected. Two further popular initiatives “Moratorium-Plus – for the Extension of the Moratorium concerning the Construction of Nuclear Power Plants and the Limitation of the Nuclear Risk” and “Get out of Nuclear Power – For a Change in the Field of Energy and for the Progressive Closing-Down of Nuclear Power Plants (Get out of Nuclear Power)”, filed on 28 September 1999, are still pending. B. The Federal Act on the Peaceful Use of Nuclear Energy 22. Under section 4(1)(a) of the Federal Act of 23 December 1959 on the Peaceful Use of Nuclear Energy (“the Nuclear Energy Act”), a licence from the Confederation is required for the construction and operation of nuclear installations and for any changes in the purpose, nature or scale of such installations. Section 5(1) provides that a licence must be refused or granted subject to appropriate conditions or obligations if that is necessary in order, in particular, to protect people, the property of others or important rights. Section 6 provides that the Federal Council or a body designated by it decides licence applications. No appeal lies against its decisions. Section 8 stipulates that nuclear installations and every form of ownership of radioactive nuclear fuels and residues shall be placed under federal supervision; the Federal Council and the body designated by it shall have the right in executing their supervisory function to issue instructions at any time if that becomes necessary in order, in particular, to protect people, the property of others and important rights; they are also entitled to supervise compliance with these instructions. 23. Under the Federal Court's case-law, the safety of nuclear power plants can be considered by the Confederation only in the context of its licensing procedures ( Judgments of the Federal Court ( ATF ), vol. 119 Ia, p. 402). C. Federal order concerning the Nuclear Energy Act 24. In addition to the previously required authorisations, Article 1 of the federal order of 6 October 1978 concerning the Nuclear Energy Act requires a general licence of the Federal Council for all nuclear installations as a prerequisite for granting construction and operating licences. The Federal Council has the exclusive competence to grant licences. The procedure for the granting of the general licence requires, according to Article 5, publication of the application and, according to Article 7, publication of the comments and expert opinions on the application. The licensing decision is based on the conclusions of the safety authorities reached at the end of the detailed review and assessment of the safety analysis report, of the probabilistic safety analysis, and of additional documents that may be requested from the applicant (see paragraphs 25 and 26 below). D. Federal ordinance concerning the supervision of nuclear installations 25. The ordinance of 14 March 1983, which deals with the regulation of nuclear installations, entrusts the HSK with the regulatory role. The ordinance formally establishes the HSK as the competent authority for supervising nuclear installations as long as they exist, including inspections of nuclear power plants. The HSK supervises the operators, and assesses the nuclear safety and radiation protection of nuclear power plants. It proposes guidelines which are of a directional nature for the operators. Within the framework of the licensing process, the HSK assesses in detail the application and the safety analysis report submitted by the applicant. The objective of this assessment is to verify compliance with the relevant regulations and guidelines. In this work, the HSK also has to take into account the established international standard of science and technology. The results and insights of the review and assessment are documented in a safety evaluation report. This report is used by the Federal Council as a basis for deciding upon the approval of applications made by the operator of a nuclear power plant. The HSK provides information on aspects of nuclear safety and radiation protection in Swiss nuclear power plants as well as on its own activities and also draws up annual reports. After the granting of a licence, the design and construction of the existing nuclear power plants are reassessed periodically, both in the case of incidents and during normal operation. Safety reviews have to be performed at intervals of about ten years. Deficiencies in the nuclear power plants, when compared to the current state of science and technology, have to be assessed. If they affect the safety, they have to be eliminated by means of appropriate backfitting. The HSK is independent from any organisation concerned with the promotion or utilisation of nuclear energy. Although it is part of the Federal Department of Environment, Transport, Energy and Communication and attached to the Federal Energy Office, at the technical level the HSK acts independently from the rest of the Office and from the Federal Department. The legally required review and assessment of applications through the HSK is conducted solely on the basis of nuclear safety criteria to the exclusion of any other considerations. E. Federal ordinance concerning the Swiss Federal Nuclear Safety Commission 26. According to section 1 of this ordinance of 14 March 1983, the KSA is an advisory body to the Federal Council and the Federal Department of Environment, Transport, Energy and Communication. It is administratively attached to the Federal Office of Energy. Section 2 provides that the KSA gives its opinion on licence applications and on whether necessary and supportable measures to protect persons and the environment against the hazards of ionising radiation are taken, and whether such measures are in conformity with experience and with the state of science and technology. The role of the KSA is to bring in additional professional expertise from outside the administration and to provide a second opinion to the federal government. The KSA reports directly to the Federal Council. It is therefore independent from other governmental bodies concerned with the use of nuclear energy. F. The Federal Judicature Act 27. Section 97 of the Federal Judicature Act of 16 December 1943 provides that the Federal Court hears, as a final court of appeal, administrative-law appeals against decisions of the federal authorities. However, by virtue of section 100(u) no appeal lies in matters of nuclear energy against decisions concerning licences for nuclear installations and preparatory acts. G. The Federal Administrative Proceedings Act 28. Section 6 of the Federal Administrative Proceedings Act of 20 December 1968 provides that the persons whose rights could be affected by the decision which will be given are considered as parties, as well as those persons, organisations or authorities who have the right to appeal against that decision. Section 44 lays down the principle that an appeal lies against administrative decisions. By section 46, however, an appeal is inadmissible in particular if it is made against a decision against which an administrative-law appeal lies to the Federal Court or against final decisions given in accordance with other federal laws. Under section 48(a) a person has locus standi to appeal if he is affected by the decision and has an interest worthy of protection in having the decision set aside or varied. H. The Civil Code 29. Article 28 of the Civil Code protects the right to the integrity of the person while actions for nuisance are governed by Article 28 (a). Other relevant provisions of the Civil Code read as follows: Article 679 “Any person who sustains or is exposed to damage because an owner abuses his right may bring an action against that owner requiring him to restore the previous position or to take preventive measures, without prejudice to any damages.” Article 684 “1. When exercising their right, especially when carrying on industrial processes, owners are required to refrain from acting in a manner detrimental to neighbouring properties. 2. The following, in particular, are prohibited: emissions of smoke or soot, offensive smells, noises, and vibrations which are harmful and exceed the limits of the tolerance which neighbours must show to each other having regard to local custom and the situation and type of the buildings.” THE LAW I. withdrawal of four applicants 33. On 16 July 1999 the applicants' lawyer informed the Court that four of the applicants, namely Mrs Ursula Brunner, Mr Ernst Haeberli, Mrs Helga Haeberli and Mr Hans Vogt-Gloor, did not intend to pursue the proceedings before the Court. 34. The Court takes note of the declaration of these four applicants and, in so far as their complaints are concerned, strikes the application out of its list (Article 37 § 1 (a) of the Convention). II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 35. The applicants complained that they were denied effective access to a court in breach of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The applicants complained in particular that it had not been open to them under Swiss law to seek judicial review contesting the lawfulness of the decision of the Federal Council of 12 December 1994 granting the Nordostschweizerische Kraftwerke AG (“NOK”) a limited operation licence for the Beznau II nuclear power plant. A. The Government's preliminary objection of failure to exhaust domestic remedies 36. The Government raised a preliminary objection of failure to exhaust domestic remedies. As before the Commission, the Government pleaded that the applicants could have filed a civil action based on Articles 679, 684 and 928 and on Article 28 (a) (1) of the Swiss Civil Code. While no appeal lay against the decision to grant an operating licence for a nuclear power plant, civil actions related to property and neighbours' rights would have enabled a court, if the conditions were met, to protect these rights, for instance by ordering the closure of the nuclear power plant, even if such a decision would not have invalidated the operating licence of the nuclear power plant as such. 37. The Court considers that the Government's argument is so closely linked to the substance of the applicants' complaints under Article 6 § 1 that the preliminary objection should be joined to the merits (see, for example, the Kremzow v. Austria judgment of 21 September 1993, Series A no. 268 ‑ B, p. 41, § 42). B. Applicability of Article 6 § 1 1. Arguments before the Court 38. The applicants submitted that their complaints in the present case and the nature of the decision which they contested – the granting of the extension of the operating licence of a nuclear power plant – were identical to the complaints and the nature of the contested decision in the case of Balmer-Schafroth and Others v. Switzerland ( judgment of 26 August 1997, Reports of Judgments and Decisions 1997-IV). In the present case, however, so they argued, Article 6 § 1 was applicable. The decision to grant NOK an operating licence for the Beznau II nuclear power plant effectively “determined” their civil rights to the protection of their property and physical integrity. The “civil” character of the rights to life and physical integrity followed from the Swiss legal order. The protection of physical integrity was governed by the Civil Code and the Law of Obligations. Section 5 of the Nuclear Energy Act merely put into more concrete terms the civil right to protection in the area of the law relating to nuclear installations. Moreover, there was a serious disagreement between them and the Federal Council about the question whether the legal conditions for the granting of the operating licence were satisfied. Finally, the outcome of the dispute was directly decisive for their entitlement to protection against the activities of the nuclear power plant. The applicants referred in particular to the expert opinion of 26 November 1997 drawn up by the Institute for Applied Ecology in Darmstadt, Germany (see paragraph 18 above). This report pointed to specific safety deficiencies of the Beznau II nuclear power plant and showed, so they argued, that it did not meet the standards of pressurised water reactors in central Europe. In the applicants' submission, the Swiss authorities, in particular the Federal Council, incorrectly and negligently assessed the security standards. Furthermore, the Federal Council neither recognised nor took account of the criticism of the OSART mission concerning the serious deficiencies in the organisational structures and management at the Beznau II power plant. They further pointed out that the report of January 1999 of the International Regulatory Review Team (IRRT) (see paragraph 19 above) not only contained positive observations, but also expressed considerable criticism, for instance with regard to insufficient human resources and the lack of guidelines resulting in too vague a risk assessment, especially in the areas of fire and seismological protection. The applicants claimed that the probative value of the expert report prepared by the Institute for Applied Ecology could not simply be refuted by reference to the authority of the reports submitted by the Swiss Nuclear Safety Inspectorate ( Hauptabteilung für die Sicherheit der Kernanlagen – “ HSK ”). They further submitted that the numerous technical safety reports and probability studies produced on the subject of nuclear fission described a large number of concrete malfunctions that could occur – and had already occurred – at various atomic power plants and thus turned the inherent risk into a reality. The applicants concluded that, both in the course of the domestic proceedings relating to the granting of the licence and with the expert report of the Institute for Applied Ecology, they had shown the connection between the extension of the operating licence and the existence of a serious, specific and immediate danger, which justified the application of Article 6 § 1 of the Convention. According to the applicants, the question whether the relatively high risk was compatible with national legislation and their rights to physical integrity and of property could only be satisfactorily examined by an independent court. On 28 February 2000 the applicants submitted unsolicited material relating to the supply of nuclear fuel to the Beznau II nuclear power plant (see paragraph 8 above). According to a press communiqué issued by NOK on 24 February 2000, various collaborators of British Nuclear Fuels Ltd (BNFL) at Sellafield producing MOX (mixed oxides of plutonium and uranium) nuclear fuel were engaged in falsification of safety data from 1996 to 1998. The British Nuclear Installations Inspectorate report released on 17 February 2000 revealed that the falsification of safety data for MOX fuel affected BNFL's clients in Japan, Germany and Switzerland. The applicants submitted that NOK had taken no safety measures at all, the Japanese authorities had refused the fuel for safety reasons and the German authorities had closed down the Unterweser reactor which had received four assemblies of MOX fuel from BNFL. In the applicants' view, this whole affair showed, once again, that the Beznau II power plant was operated with intolerable risks for the direct neighbours and that only a court could change this dangerous custom. The applicants finally asked the Court to clarify its case-law in so far as it required proof of a serious, specific and imminent danger as a condition for the applicability of Article 6 § 1. In their submission, a distinction had to be drawn between, on the one hand, the procedural Convention right to examination by a domestic court of the governmental decision to grant an extension of the operating licence and, on the other hand, the possible right under the substantive national law to have the nuclear power plant closed. As far as the procedural Convention right was concerned, it should be sufficient, they maintained, only to prove the serious nature of the risk. If proof of immediate danger in the sense of a serious accident being imminent had to be furnished for the purposes of Article 6 § 1, there would no longer be any difference in practice between procedural and substantive law. 39. The Government agreed with the applicants that their complaints in the present case and the nature of the decision which they contested – the granting of the extension of the operating licence of a nuclear power plant – were identical to the complaints and the nature of the contested decision in the Balmer-Schafroth and Others case. They accordingly recalled their submissions in the latter case, where they had maintained that the matters impugned by the applicants did not come within the ambit of Article 6 § 1 of the Convention (see the Balmer-Schafroth and Others judgment cited above, p. 1358, § 35) and had shared the dissenting opinion of six members of the Commission to the effect that “the policy of a country in matters of energy supply is of general interest and must be decided upon in the democratic political process designed for decision-making on the national level” (see the dissenting opinion of Mr Trechsel joined by Mr Gözübüyük, Mr Conforti, Mr Šváby, Mr Lorenzen and Mr Herndl, annexed to the Commission's opinion in the Balmer-Schafroth and Others case, ibid., p. 1376). On the other hand, the Government took note of the Court's reasoning in the Balmer-Schafroth and Others judgment and no longer disputed that the applicants were relying on rights recognised in Swiss law, namely the rights to life, to physical integrity and of property, and that there was a genuine and serious dispute relating to the extension of the operating licence, having regard in particular to the fact that the Federal Council had declared the applicants' objections admissible (see the Balmer-Schafroth and Others judgment cited above, pp. 1358 and 1359, §§ 34 and 38). As to the question whether the outcome of the proceedings in issue was directly decisive for the rights asserted, the Government maintained that the applicants had, like the applicants in the Balmer-Schafroth and Others case, failed to show that the operation of the power plant exposed them personally to a danger that was not only serious but also specific and imminent. According to the Government, the new expert opinion drawn up by the Institute for Applied Ecology in Darmstadt took a stand in favour of one party and could not be considered as an independent expert opinion, while the Federal Council, when making its decision of 12 December 1994, relied on serious and detailed expert opinions prepared by the Swiss Nuclear Safety Inspectorate (“ HSK ”) and the Federal Nuclear Safety Commission ( Eidgenössische Kommission für die Sicherheit von Kernanlagen – “ KSA ”), both of which were independent from the company operating the nuclear power plant. Unlike the Institute for Applied Ecology in Darmstadt, these bodies had a clear knowledge of the nuclear installations in Switzerland, which gave them the particular competence to assess the questions linked to the safety of the Beznau II nuclear power plant. It followed from the reports prepared by these bodies that the standard of the Beznau II nuclear power plant was in line with the norms related to nuclear safety. This was shown by the fact that incidents which had occurred during the operation of this power plant were exceptional and above all minor. The Government further referred to the OSART and IRRT missions conducted by international experts who had expressed a positive opinion on the safety of the nuclear power plant and the work of the HSK (see paragraphs 17 and 19 above). The Government concluded that the link between the Federal Council's decision and the rights invoked by the applicants was therefore too tenuous and remote. In the Government's submission, Article 6 § 1 was accordingly likewise not applicable in the present case. The Government added that, in any event, the right to physical integrity was not a civil right so as to attract the application of Article 6 § 1. This provision was applicable where, unlike in the present case, the subject matter of the action was pecuniary in nature and founded on infringement of rights which were also pecuniary rights. 40. The Commission, examining the circumstances of the present case in the light of the Balmer-Schafroth and Others judgment, also concluded on similar grounds that Article 6 § 1 was not applicable. 41. Fifteen dissenting members of the Commission, however, expressed the view that the report of 26 November 1997 prepared by the Institute for Applied Ecology constituted sufficient evidence to establish a specific and immediate danger to which the applicants were exposed by reason of the operation of the Beznau II nuclear power plant. The outcome of the procedure before the Federal Council was therefore directly decisive for the rights relied on by the applicants, with the consequence that Article 6 § 1 of the Convention was applicable in the present case. In the dissenters' view, since the applicants were not entitled in this regard to have access to an independent and impartial tribunal with full jurisdiction to review the factual and legal issues, there had been a violation of that provision. 2. The Court's assessment 42. The Court agrees with the parties that the applicable domestic legislation and the nature of the grievance raised under Article 6 § 1 are the same as in the earlier Balmer-Schafroth and Others case. The Court will accordingly examine the facts of the present case in the light of the principles applied in the Balmer-Schafroth and Others judgment. (a) Applicable general principles 43. The Court reiterates that, according to its well-established case-law, Article 6 § 1 of the Convention may be relied on by individuals who consider that an interference with the exercise of one of their (civil) rights is unlawful and complain that they have not had the possibility of submitting that claim to a court 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, p. 20, § 44). In the words of the Court's Golder judgment, 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 (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, § 36). This right to a court extends only to “disputes” (“ contestations ” in the French text) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law; Article 6 § 1 does not in itself guarantee any particular content for “civil rights and obligations” in the substantive law of the Contracting States. The “dispute” must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see the following judgments : Le Compte, Van Leuven and De Meyere cited above, pp. 21-22, § 47; Fayed v. the United Kingdom, 21 September 1994, Series A no. 294-B, pp. 45-46, § 56; Masson and Van Zon v. the Netherlands, 28 September 1995, Series A no. 327-A, p. 17, § 44; Balmer-Schafroth and Others cited above, p. 1357, § 32; Le Calvez v. France, 29 July 1998, Reports 1998-V, pp. 1899-900, § 56). (b) Existence of one or more “rights” recognised under domestic law 44. According to the applicants, they wanted to be able to challenge before the courts the lawfulness of the Federal Council's decision of 12 December 1994 to grant NOK the renewal of its operating licence in order to vindicate their rights to life, to physical integrity and of property. The terms of the earlier objections lodged on 28 April 1992 under section 48(a) of the Federal Administrative Proceedings Act (see paragraph 28 above), relying as they did on section 5(1) of the Nuclear Energy Act which refers to the protection of “people, the property of others and important rights” (see paragraph 22 above), bear out that such concerns did indeed underlie the applicants' opposition to the renewal of the licence (see paragraph 11 above). The rights adverted to by the applicants are, as the Government have always conceded, ones accorded to individuals under Swiss law, notably in the Constitution and in the provisions of the Civil Code governing neighbours' rights (see paragraphs 29 to 32 above). (c) Existence of a justiciable “dispute” (“ contestation ”) over those “rights” 45. It was not contested by the Government in the light of the Court's Balmer-Schafroth and Others judgment that there was a “genuine and serious” dispute of a justiciable nature between the applicants and the decision-making authorities as to whether the licence for the operation of the nuclear power plant should be extended. On this point, the Court recalls its reasoning in that judgment : “ ... Although, as the Government indicated, the decision to be taken necessarily had to be based on technical data of great complexity – a fact which does not in itself prevent Article 6 being applicable – the only purpose of the data was to enable the Federal Council to verify whether the conditions laid down by law for the grant of an extension had been met. ... Inasmuch as it sought to review whether the statutory requirements had been complied with, the Federal Council's decision was therefore more akin to a judicial act than to a general policy decision ... Moreover, in the light of the above considerations and the fact that the Federal Council declared the applicants' objection admissible, there can be no doubt that the dispute was genuine and serious.” (loc. cit., pp. 1358-59, §§ 37-38). The Court is of the opinion that the same considerations and the same conclusion apply in the present case, where the Federal Council likewise examined the applicants' objections on their merits and dismissed them as ill-founded (see paragraph 14 above). 46. It remains to be determined whether the “dispute” as to the lawfulness of the Federal Council's decision to renew the operating licence can be said to have been over the domestic-law rights that the applicants have identified as being ones they wished to vindicate before a court, that is whether the outcome of the procedure leading to the renewal decision was directly decisive for those domestic-law rights. This raises the same issue of remoteness as in the Balmer-Schafroth and Others case as to whether the link between the Federal Council's decision and the applicants' rights to adequate protection of their life, physical integrity and property was sufficiently close to bring Article 6 § 1 into play, and was not too tenuous or remote. In the Balmer-Schafroth and Others judgment the Court found as follows: “[The applicants] did not ... establish a direct link between the operating conditions of the power station which were contested by them and their right to protection of their physical integrity, as they failed to show that the operation of Mühleberg power station exposed them personally to a danger that was not only serious but also specific and, above all, imminent. In the absence of such a finding, the effects on the population of the measures which the Federal Council could have ordered to be taken in the instant case therefore remained hypothetical. Consequently, neither the dangers nor the remedies were established with a degree of probability that made the outcome of the proceedings directly decisive within the meaning of the Court's case-law for the right relied on by the applicants. In the Court's view, the connection between the Federal Council's decision and the right invoked by the applicants was too tenuous and remote. Article 6 § 1 is accordingly not applicable in the instant case.” (loc. cit., p. 1359, § 40) 47. As recalled above (at paragraphs 38 and 41), both the applicants and the dissenters in the Commission considered that the facts of the present case were to be distinguished from those in Balmer-Schafroth and Others, in that the present applicants, unlike the applicants in the earlier case, had adduced sufficient evidence in the form of the report of the Institute for Applied Ecology in Darmstadt to establish a specific and immediate danger to which they were exposed by reason of the operation of the Beznau II nuclear power plant. 48. The Court must ascertain whether the applicants' arguments were sufficiently tenable; it does not have to decide whether they were well-founded in terms of the applicable Swiss legislation (see, mutatis mutandis, the Le Calvez judgment cited above, pp. 1899-900, § 56, and the Editions Périscope v. France judgment of 26 March 1992, Series A no. 234-B, p. 65, § 38). 49. To begin with, the Court notes that, as in the Balmer-Schafroth and Others case, the Federal Council based its licensing decision of 12 December 1994 in the present case on the conclusions reached at the end of the detailed review and assessment of the safety analysis report submitted by the operating company, on the safety evaluation report prepared by the HSK on the basis of nuclear safety criteria and on the statement of the KSA reviewing and commenting both on the licence application and on the corresponding safety evaluation report of the HSK (see paragraph 15 above). At the technical level the HSK acts independently from the Federal Office of Energy and the Federal Department of Environment, Transport, Energy and Communication (see paragraph 25 above). The KSA, on the other hand, is administratively attached to the Federal Energy Office, but reports directly to the Federal Council (see paragraph 26 above). It is therefore independent from the other governmental bodies concerned with the use of nuclear energy. Both safety authorities, the HSK and the KSA, are independent of the operator. 50. The Court also notes that subsequent inspections and reports, including some carried out by international bodies, whilst not having a direct bearing on the dangers existing at the time of the impugned renewal decision, go towards confirming rather than undermining the expertise relied on by the Federal Council. The international OSART and IRRT missions conducted so far have noted “the stringent requirements with regard to quality and safety, the professional qualities of the staff at all levels as well as the very satisfactory condition of the Beznau II nuclear power plant”, although additional safety improvements have been recommended. They have also identified “a number of good practices which had been recorded for the benefit of other nuclear regulatory bodies” (see paragraphs 17 and 19 above). Furthermore, according to the annual reports of the HSK, the condition and the operational management of the Beznau II nuclear power plant had been rated as good with regard to nuclear safety and radiation protection. It followed in particular from the annual report of 1997 that the incidents which had occurred were of minor relevance to nuclear safety and appropriate improvements had been carried out. The Beznau II nuclear power plant had been progressively backfitted to address the major on-going developments in nuclear power plant safety technology. NOK had complied with the licensing conditions in connection with the operating licence of 12 December 1994 and some conditions had in part to be updated periodically with respect to plant documentation and analyses (see paragraph 16 above). 51. Having regard to the foregoing, the Court considers that the facts of the present case provide an insufficient basis for distinguishing it from the Balmer-Schafroth and Others case. In particular, it does not perceive any material difference between the present case and the Balmer-Schafroth and Others case as regards the personal circumstances of the applicants. In neither case had the applicants at any stage of the proceedings claimed to have suffered any loss, economic or other, for which they intended to seek compensation (see paragraph 12 above, and the Balmer-Schafroth and Others judgment cited above, pp. 1352 and 1357-58, §§ 9 and 33 ). In the earlier case also, the applicants had attached “several expert opinions” to the objection which they lodged with the Federal Council against the operating company's application for an extension of its operating licence (loc. cit.). Contrary to the view of the applicants and the fifteen dissenters in the Commission (see paragraphs 38 and 41 above), it cannot be said that the new report of the Institute for Applied Ecology in the present case, any more than the expert reports adduced by the objectors in the Balmer-Schafroth and Others case, showed that at the relevant time the operation of the Beznau II power plant exposed the applicants personally to a danger that was not only serious but also specific and, above all, imminent. Neither is such a consequence shown by the unsolicited material, relating to the supply of nuclear fuel to the power plant during a subsequent period, which was submitted by the applicants after the close of the written procedure (see paragraph 8 above). The Court consequently cannot but arrive in the present case at the same conclusion on the facts as in the Balmer-Schafroth and Others case (see the extract from the Balmer-Schafroth and Others judgment quoted above at paragraph 45), namely that the connection between the Federal Council's decision and the domestic-law rights invoked by the applicants was too tenuous and remote. 52. Indeed, the applicants in their pleadings before the Court appear to accept that they were alleging not so much a specific and imminent danger in their personal regard as a general danger in relation to all nuclear power plants; and many of the grounds they relied on related to safety, environmental and technical features inherent in the use of nuclear energy. Thus, in their reply to the questions put by the Court, the applicants linked the danger to their physical integrity to the alleged fact that “every atomic power station releases radiation during normal operation ... and thus puts the health of human beings at risk”, and they concluded: “To summarise, it needs to be said that, from the medical point of view, the operation of an atomic power plant involves a specific and direct risk to health both when the plant is working normally and when minor malfunctions occur. ... [I]t is necessary to take a decision of principle in respect of nuclear energy. The operation of atomic power plants involves high risks and it may – and with a considerable degree of probability will – damage the property and physical integrity of those living in the vicinity.” 53. To this extent, the applicants are seeking to derive from Article 6 § 1 of the Convention a remedy to contest the very principle of the use of nuclear energy, or at the least a means for transferring from the government to the courts the responsibility for taking, on the basis of the technical evidence, the ultimate decision on the operation of individual nuclear power stations. As the applicants put it in their memorial, “if the authority responsible is to take proper account of such risks” – namely “a high residual risk of unforeseen scenarios and of an unforeseen sequence of events leading to serious damage” – “and assess whether the relevant back-up systems are acceptable, then it is required to be particularly independent, and only courts usually possess this independence”. In their reply to the Court's questions they furnished an explanation of their position in similar terms: “Only a judicial examination in adversarial proceedings would appear to be the appropriate way to recognise and examine all possible deficiencies before it is too late.” 54. The Court considers, however, that how best to regulate the use of nuclear power is a policy decision for each Contracting State to take according to its democratic processes. Article 6 § 1 cannot be read as dictating any one scheme rather than another. What Article 6 § 1 requires is that individuals be granted access to a court whenever they have an arguable claim that there has been an unlawful interference with the exercise of one of their (civil) rights recognised under domestic law. In this respect, Swiss law empowered the applicants to object to the extension of the operating licence of the power station on the grounds specified in section 5 of the Federal Nuclear Act. It did not, however, give them any rights as regards the subsequent extension of the licence and operation of the station beyond those under the ordinary Civil Code for nuisance and de facto expropriation of property (see paragraphs 29-32 above). It is not for the Court to examine the hypothetical question whether, if the applicants had been able to demonstrate a serious, specific and imminent danger in their personal regard as a result of the operation of the Beznau II power plant, the Civil Code remedies would have been sufficient to satisfy these requirements of Article 6 § 1, as the Government contended in the context of their preliminary objection. This being so, there is likewise no necessity for the Court to rule on the Government's preliminary objection (see paragraphs 36-37 above). 55. In sum, the outcome of the procedure before the Federal Council was decisive for the general question whether the operating licence of the power plant should be extended, but not for the “determination” of any “civil right”, such as the rights to life, to physical integrity and of property, which Swiss law conferred on the applicants in their individual capacity. Article 6 § 1 is consequently not applicable in the present case. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 56. Before the Commission, the applicants also alleged a violation of Article 13 of the Convention on the ground that, in relation to the decision to renew the operating licence of the Beznau II nuclear power plant, no effective remedy was available to them under domestic law enabling them to complain of a violation either of their right to life under Article 2 or of their right to respect for physical integrity as safeguarded under Article 8. 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.” 57. The Commission and the Government considered Article 13 to be inapplicable for the same reasons as for Article 6 § 1. The Government further submitted that, in so far as Articles 2 and 8 of the Convention could have any pertinence in the present case, the Civil Code action referred to in the context of the plea of non-exhaustion of domestic remedies under Article 6 § 1 (see paragraphs 29-32 above) constituted an effective judicial remedy available to the applicants for the protection of their life, physical integrity and property. 58. Article 13 has been consistently interpreted by the Court as requiring a remedy only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52). 59. As pleaded, the applicants' complaint under Article 13, like that under Article 6 § 1, was directed against the denial under Swiss law of a judicial remedy to challenge the Federal Council's decision. The Court has found that the connection between that decision and the domestic-law rights to protection of life, physical integrity and property invoked by the applicants was too tenuous and remote to attract the application of Article 6 § 1 (see paragraphs 48-51 above). The reasons for that finding likewise lead to the conclusion, on grounds of remoteness, that in relation to the Federal Council's decision as such no arguable claim of violation of Article-2 or Article 8 of the Convention and, consequently, no entitlement to a remedy under Article 13 have been made out by the applicants. In sum, as in the Balmer-Schafroth and Others case the Court finds Article 13 to be inapplicable. 60. As in relation to Article 6 § 1 (see paragraph 54 above), it is not for the Court to examine in the present case the further, hypothetical question whether, in the event of an arguable claim of violation of Articles 2 and 8 as a result of the operation of the Beznau II nuclear power plant, the Civil Code action relied on by the Government would have provided an effective remedy for the purposes of Article 13. | The Court held that Article 6 § 1 of the Convention was not applicable in the present case. It found that the connection between the Federal Council’s decision and the domestic-law rights invoked by the applicants (life, physical integrity, property) had been too tenuous and remote and was not sufficient to bring Article 6 § 1 into play. Indeed, the applicants in their pleadings before the Court appeared to accept that they were alleging not so much a specific and imminent danger in their personal regard as a general danger in relation to all nuclear power plants; and many of the grounds they relied on related to safety, environmental and technical features inherent in the use of nuclear energy. As to the fact that the applicants were seeking to derive from Article 6 § 1 a remedy to contest the very principle of the use of nuclear energy, or at the least a means for transferring from the government to the courts the responsibility for taking, on the basis of the technical evidence, the ultimate decision on the operation of individual nuclear power stations, the Court considered that how best to regulate the use of nuclear power is a policy decision for each Contracting State to take according to its democratic processes. The Court also found Article 13 of the Convention to be inapplicable in this case. |
850 | GPS (Global Positioning System) | 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 (right to respect for private life) of the Convention. Given that the criminal investigation had concerned very serious crimes, it found that the GPS surveillance of the applicant had been proportionate. |
649 | Freedom of expression | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. Applicable domestic law on defamation 54. The relevant provisions of the Freedom of the Press Act of 29 July 1881 read as follows. Section 23 “Anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, has directly and successfully incited the perpetrator or perpetrators to commit a serious crime or major offence [ crime ou délit ], and if the incitement has been acted upon, shall be punished as an accessory to the said offence. This provision shall also be applicable where the incitement has been followed only by an attempt to commit a serious crime [ crime ] under Article 2 of the Criminal Code.” Section 29 “The making of any factual allegation or imputation that damages the honour or reputation of the person or body to whom the fact in question is attributed shall constitute defamation [ diffamation ]. The direct publication or reproduction of such an allegation or imputation shall be punishable, even where it is expressed in sceptical terms or made about a person or body that is not expressly named but is identifiable by the terms of the offending speeches, shouts, threats, written or printed matter, placards or posters. The use of abusive or contemptuous language or invective not containing an allegation of any fact shall constitute an insult [ injure ].” Section 31 “Where defamation is committed by the same means by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, ..., the offence shall be punishable by the same penalty. ...” Section 41 “... No proceedings for defamation, insult or abuse shall arise from any faithful record of judicial proceedings drawn up in good faith, or from any statements made or pleadings filed in a court of law. Courts examining the merits of the case may nevertheless order the exclusion of the insulting, contemptuous or defamatory statements, and award damages against the person concerned. Defamatory allegations that are unrelated to the case may, however, give rise to criminal prosecution or civil actions by the parties, where such actions have been left open to them by the courts, and, in any event, to civil action by third parties.” Section 55 “Where the defendant wishes to be allowed to prove the veracity of the defamatory allegations, in accordance with section 35 hereof, he shall, within ten days from the service of the summons, notify the public prosecutor or the complainant, at the address for service designated thereby, depending on whether the proceedings have been initiated by the former or the latter, of: (1) The allegations as given and described in the summons of which he seeks to prove the veracity; (2) Copies of the documents; (3) The names, occupations and addresses of the witnesses he intends to call for the said purpose. The said notice shall contain the choice of the address for service in the proceedings before the criminal court, and all requirements shall be met on pain of forfeiting the right to bring evidence.” B. Code of Criminal Procedure 55. Article 11 of the Code of Criminal Procedure provides as follows: Article 11 “Except where the law provides otherwise and without prejudice to the rights of the defence, proceedings in the course of the preliminary and judicial investigations shall be conducted in secret. Any person contributing to such proceedings shall be bound by a duty of professional secrecy under the conditions and subject to the penalties set out in Articles 226-13 and 226-14 of the Criminal Code. However, in order to prevent the dissemination of incomplete or inaccurate information, or to put an end to a breach of the peace, the public prosecutor may, of his own motion or at the request of the judicial authority responsible for pre-trial investigation or the parties, make public any objective elements from the proceedings that do not convey any judgment as to the merits of the charges brought against the individuals concerned.” C. Exercise of the legal profession 56. Recommendation Rec(2000)21 of the Council of Europe’s Committee of Ministers to member States on the freedom of exercise of the profession of lawyer (adopted on 25 October 2000) states as follows. “ ... Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen the rule of law, in which lawyers take part, in particular in the role of defending individual freedoms; Conscious of the need for a fair system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restriction, influence, inducement, pressure, threats or interference, direct or indirect, from any quarter or for any reason; ... Principle I – General Principles on the freedom of exercise of the profession of lawyer 1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights. ...” 57. The Basic Principles on the Role of Lawyers (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba, from 27 August to 7 September 1990) state, in particular: “16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics. ... 22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.” 58. The Council of Bars and Law Societies of Europe (CCBE) has adopted two founding texts: the Code of Conduct for European Lawyers, which dates back to 28 October 1988 and has undergone a number of amendments, and the Charter of Core Principles of the European Legal Profession, which was adopted on 24 November 2006. The Charter, which is not conceived as a code of conduct, contains a list of ten core principles common to the national and international rules regulating the legal profession. “(a) the independence of the lawyer, and the freedom of the lawyer to pursue the client’s case; (b) the right and duty of the lawyer to keep clients’ matters confidential and to respect professional secrecy; (c) avoidance of conflicts of interest, whether between different clients or between the client and the lawyer; (d) the dignity and honour of the legal profession, and the integrity and good repute of the individual lawyer; (e) loyalty to the client; (f) fair treatment of clients in relation to fees; (g) the lawyer’s professional competence; (h) respect towards professional colleagues; (i) respect for the rule of law and the fair administration of justice; and (j) the self-regulation of the legal profession.” 59. Lastly, there is a practical guide to the international principles concerning the independence and responsibility of judges, lawyers and prosecutors, produced by the International Commission of Jurists (initially in 2004, the most recent version being issued on 22 July 2009), which contains many significant and relevant international documents. D. Relations between judges and lawyers 60. The relevant passages of Opinion no. (2013) 16 on the relations between judges and lawyers, adopted by the Consultative Council of European Judges (CCJE) on 13-15 November 2013, read as follows. “6. Within the framework of their professional obligation to defend the rights and interests of their clients, lawyers must also play an essential role in the fair administration of justice. Paragraph 6 of the Commentary on the Charter of Core Principles of the European Legal Profession of the CCBE defines the lawyer’s role as follows: ‘The lawyer’s role, whether retained by an individual, a corporation or the state, is as the client’s trusted adviser and representative, as a professional respected by third parties, and as an indispensable participant in the fair administration of justice. By embodying all these elements, the lawyer, who faithfully serves his or her own client’s interests and protects the client’s rights, also fulfils the functions of the lawyer in Society – which are to forestall and prevent conflicts, to ensure that conflicts are resolved in accordance with recognised principles of civil, public or criminal law and with due account of rights and interests, to further the development of the law, and to defend liberty, justice and the rule of law’. As it is stated in paragraph 1.1 of the Code of Conduct for European Lawyers of the CCBE, respect for the lawyer’s professional function is an essential condition for the rule of law and democracy in society. The UN Basic Principles on the Role of Lawyers state that adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession. Principle 12 stipulates that lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice. 7. Judges and lawyers must be independent in the exercise of their duties, and must also be, and be seen to be, independent from each other. This independence is affirmed by the statute and ethical principles adopted by each profession. The CCJE considers such independence vital for the proper functioning of justice. The CCJE refers to Recommendation CM/Rec (2010)12, paragraph 7, which states that the independence of judges should be guaranteed at the highest possible legal level. The independence of lawyers should be guaranteed in the same way. ... 9. Two areas of relations between judges and lawyers may be distinguished: – on the one hand, the relations between judges and lawyers which stem from the procedural principles and rules of each state and which will have a direct impact on the efficiency and quality of judicial proceedings. In the conclusions and recommendations set out in its Opinion No. 11 (2008) on the quality of judicial decisions, the CCJE pointed out that the standard of quality of judicial decisions will clearly be the result of interactions between the numerous actors in the judicial system; – on the other hand, the relations which result from the professional conduct of judges and lawyers and which require mutual respect for the roles played by each side and a constructive dialogue between judges and lawyers. ... 19. Judges and lawyers each have their own set of ethical principles. However, several ethical principles are common to both judges and lawyers, e.g. compliance with the law, professional secrecy, integrity and dignity, respect for litigants, competence, fairness and mutual respect. 20. The ethical principles of judges and lawyers should also concern themselves with the relations between the two professions. ... With regard to lawyers, paragraphs 4.1, 4.2, 4.3 and 4.4 of the CCBE Code of Conduct for European Lawyers express the following principles: a lawyer who appears, or takes part in a case, before a court or tribunal must comply with the rules of conduct applied before that court or tribunal. A lawyer must always have due regard for the fair conduct of the proceedings. A lawyer shall, while maintaining due respect and courtesy towards the court, defend the interests of the client honourably and fearlessly without regard to the lawyer’s own interests or to any consequences to him- or herself or to any other person. A lawyer shall never knowingly give false or misleading information to the court. 21. The CCJE considers that the relations between judges and lawyers should be based on the mutual understanding of each other’s role, on mutual respect and on independence vis-à-vis each other. The CCJE accordingly considers it necessary to develop dialogues and exchanges between judges and lawyers at a national and European institutional level on the issue of their mutual relations. The ethical principles of both judges and lawyers should be taken into account. In this regard, the CCJE encourages the identification of common ethical principles, such as the duty of independence, the duty to sustain the rule of law at all times, co-operation to ensure a fair and swift conduct of the proceedings and permanent professional training. Professional associations and independent governing bodies of both judges and lawyers should be responsible for this process. ... 24. Relations between judges and lawyers should always preserve the court’s impartiality and image of impartiality. Judges and lawyers should be fully conscious of this, and adequate procedural and ethical rules should safeguard this impartiality. 25. Both judges and lawyers enjoy freedom of expression under Article 10 of the Convention. Judges are, however, required to preserve the confidentiality of the court’s deliberations and their impartiality, which implies, inter alia, that they must refrain from commenting on proceedings and on the work of lawyers. The freedom of expression of lawyers also has its limits, in order to maintain, as is provided for in Article 10, paragraph 2 of the Convention, the authority and impartiality of the judiciary. Respect towards professional colleagues, respect for the rule of law and the fair administration of justice – the principles (h) and (i) of the Charter of Core Principles of the European Legal Profession of the CCBE – require abstention from abusive criticism of colleagues, of individual judges and of court procedures and decisions.” E. The decriminalisation of defamation 61. Recommendation 1814 (2007) of the Parliamentary Assembly of the Council of Europe, “Towards decriminalisation of defamation”, states, inter alia, as follows. “1. The Parliamentary Assembly, referring to its Resolution 1577 (2007) entitled ‘Towards decriminalisation of defamation’, calls on the Committee of Ministers to urge all member states to review their defamation laws and, where necessary, make amendments in order to bring them into line with the case law of the European Court of Human Rights, with a view to removing any risk of abuse or unjustified prosecutions; 2. The Assembly urges the Committee of Ministers to instruct the competent intergovernmental committee, the Steering Committee on the Media and New Communication Services (CDMC) to prepare, following its considerable amount of work on this question and in the light of the Court’s case law, a draft recommendation to member states laying down detailed rules on defamation with a view to eradicating abusive recourse to criminal proceedings. ...” 62. The response of the Committee of Ministers, adopted at the 1,029th meeting of the Ministers’ Deputies (11 June 2008), reads as follows. “1. The Committee of Ministers has studied Parliamentary Assembly Recommendation 1814 (2007) entitled ‘Towards decriminalisation of defamation’ with great attention. It has communicated the recommendation to the governments of member states as well as to the Steering Committee on the Media and New Communication Services (CDMC), the European Committee on Crime Problems (CDPC), the Steering Committee for Human Rights (CDDH) and the Council of Europe Commissioner for Human Rights, for information and possible comments. The comments received are contained in the appendix. 2. By decision of 24 November 2004, the Committee of Ministers instructed the Steering Committee on Mass Media (CDMM), which subsequently became the Steering Committee on the Media and New Communication Services (CDMC), inter alia, to look into ‘the alignment of laws on defamation with the relevant case law of the European Court of Human Rights, including the issue of decriminalisation of defamation’. It took note of the reply received in September 2006 and of the fact that the CDMC considered it desirable that member states should take a proactive approach in respect of defamation by examining, even in the absence of judgments of the European Court of Human Rights concerning them directly, domestic legislation against the standards developed by the Court and, where appropriate, aligning criminal, administrative and civil legislation with those standards. In the above-mentioned document, the CDMC also considered that steps should be taken to ensure that the application in practice of laws on defamation fully complies with those standards. 3. The Committee of Ministers endorses this view, as well as the Parliamentary Assembly’s call on member states to take such measures, with a view to removing all risk of abuse or unjustified prosecutions. 4. Bearing in mind the role of the European Court of Human Rights in developing general principles on defamation through its case law and its power to adjudicate claims of violations of Article 10 in specific cases, the Committee of Ministers does not consider it advisable at this point in time to develop separate detailed rules on defamation for member states. 5. Finally, the Committee of Ministers considers that there is no need at present to revise its Recommendation No. R (97) 20 on hate speech or to prepare guidelines on this subject. More efforts could instead be made by member states to give the recommendation more visibility and to make better use of it.” F. Judgment of the International Court of Justice (ICJ) of 4 June 2008 in the case of Djibouti v. France 63. In its judgment of 4 June 2008 in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), the ICJ noted that it was not its task to determine the facts and establish responsibilities in the Borrel case and, in particular, the circumstances in which Bernard Borrel had met his death, but added that the dispute between the two States had originated in that case, as a result of the opening of a number of judicial proceedings, in France and in Djibouti, and the resort to bilateral treaty mechanisms for mutual assistance between the parties. The ICJ observed in particular that, although the subject of the dispute was described in Djibouti’s application as the transmission by the French authorities of the Borrel case file to Djibouti, taken as a whole the application had a wider scope, which included the summonses sent to the Djiboutian President and those sent to two other Djiboutian officials, together with the arrest warrants subsequently issued against the latter. 64. The ICJ found, in particular, that the decision by the French investigating judge to refuse the request for mutual assistance had been justified by the fact that the transmission of the Borrel case file was considered to be “contrary to the essential interests of France”, in that the file contained declassified “defence secret” documents, together with information and witness statements in respect of another case in progress. It took the view that those reasons fell within the scope of Article 2 (c) of the Convention on Mutual Assistance in Criminal Matters, which allowed a requested State to refuse to execute letters rogatory if it considered that such assistance would be likely to prejudice the sovereignty, the security, the ordre public or other essential interests of the nation. The ICJ further decided not to order the transmission of the Borrel file with certain pages removed, as Djibouti had requested in the alternative. It held, however, that France had failed in its obligation to give reasons for its refusal to execute the letter rogatory, while rejecting Djibouti’s other submissions concerning the summonses addressed to the President and the two other senior Djiboutian officials. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 65. The applicant claimed that, before the Court of Cassation, his case had not been examined fairly by an impartial tribunal, having regard to the presence on the bench of a judge who had previously and publicly expressed his support for one of the civil parties, Judge M. He relied on Article 6 § 1 of the Convention, of which the relevant part reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” A. The Chamber judgment 66. After noting that the applicant had not been in a position to request the judge’s withdrawal, as he had not been informed before the hearing of the change in the composition of the bench that was to examine his appeal on points of law and that the procedure was mainly written, the Chamber examined the complaint in terms of objective impartiality. It noted that Judge J.M., one of the judges who had sat on the bench of the Criminal Division of the Court of Cassation ruling on an appeal from Judge M. and from the applicant stemming from a dispute between them, had, nine years earlier, publicly expressed his support for and trust in Judge M. in connection with another case in which she had been the investigating judge and the applicant had been acting for a civil party. Having regard to the facts, there was clear opposition between the applicant and Judge M., both in the case for which she had received the support of Judge J.M. and in the case in which J.M. was sitting as a judge of the Court of Cassation. Moreover, J.M.’s support had been expressed in an official and quite general context, at the general meeting of the judges of the Paris tribunal de grande instance. The Chamber found that there had been a violation of Article 6 § 1, as serious doubts could be raised as to the impartiality of the Court of Cassation and the applicant’s fears in that connection could be regarded as objectively justified. B. The parties’ submissions before the Grand Chamber 1. The applicant 67. The applicant recognised that it was not established that Judge J.M. had displayed any personal bias against him, but argued that regardless of his personal conduct, his very presence on the bench created a situation which rendered his fears objectively justified and legitimate. In his submission, the fact that J.M. had sat on the bench of the Criminal Division of the Court of Cassation sufficed in itself to show that there had been a violation of Article 6 § 1 of the Convention. Judge J.M. had in the past expressed his support for Judge M., when the latter was conducting the judicial investigation in the “Scientology” case, in response to criticisms of her professional conduct from the civil parties, whose representatives included the applicant, and by the public prosecutor. The applicant pointed out that Judge M. had ultimately been taken off the case at his request and that on 5 January 2000 the French State had been found liable for failings in the public justice system. 68. He argued that he had not been in a position to seek the withdrawal of Judge J.M., as he had not known, and could not reasonably have known, that this judge was going to sit in his case: the report of the reporting judge, the online workflow for the case and the notices to the lawyers had all given the same information, namely that the Criminal Division was to sit as a reduced bench. The reduced bench comprised the President of the Division, the senior judge ( doyen ) and the reporting judge, and as Judge J.M. occupied none of those positions he could not have been expected to sit. 69. On the merits, the applicant did not claim that Judge J.M. had displayed any personal bias against him and was not calling into question that judge’s right to freedom of expression. He complained merely of Judge J.M.’s presence on the bench, which in his view rendered his fears of a lack of impartiality objectively justified and legitimate. In view of the support expressed by J.M. in favour of Judge M. in the context of another high-profile case with the same protagonists, there was serious doubt as to the impartiality of the Criminal Division and his fears in that connection could be regarded as objectively justified. 2. The Government 70. The Government observed that there was no question of any lack of subjective impartiality on the part of Judge J.M. and that it was therefore necessary to determine whether the circumstances of the case were such as to raise serious doubts regarding the Court of Cassation’s objective impartiality. Referring to the effect of the statement made in July 2000 by Judge J.M., who at the time had been serving on the Paris tribunal de grande instance, they pointed out that the statement, made many years before the hearing of the Criminal Division, concerned a different case from the present one and that the terms used reflected a personal position which related only to the conditions in which disciplinary proceedings against a fellow judge had become known. The Government concluded that those remarks, which were limited in scope and had been made a long time before, were not sufficient to establish that, in his capacity as judge of the Court of Cassation, J.M. lacked objective impartiality. 71. The Government further stated that appeals on points of law were extraordinary remedies and that the Court of Cassation’s oversight was restricted to compliance with the law. Moreover, it was an enlarged bench of the Criminal Division, comprising ten judges, that had considered the case. 72. The Government accordingly argued that Article 6 § 1 of the Convention had not been breached. C. The Court’s assessment 1. General principles 73. The Court reiterates that impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII, and Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009). 74. As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court (see Kyprianou, § 119, and Micallef, § 94, both cited above). The personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark, 24 May 1989, § 47, Series A no. 154). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (see De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86). 75. In the vast majority of cases raising impartiality issues the Court has focused on the objective test (see Micallef, cited above, § 95). However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou, cited above, § 119). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996-III). 76. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise 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 or a body sitting as a bench 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 Micallef, cited above, § 96). 77. The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings (ibid., § 97). It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar, cited above, § 38). 78. In this connection even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber, cited above, § 26). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998-VIII, and Micallef, cited above, § 98). 2. Application of those principles in the present case 79. In the present case, the fear of a lack of impartiality lay in the fact that Judge J.M., who sat on the Court of Cassation bench which adopted the judgment of 10 December 2009, had expressed his support for Judge M. nine years earlier, in the context of disciplinary proceedings that had been brought against her on account of her conduct in the “Scientology” case. Speaking as a judge and a colleague in the same court, in the course of a general meeting of judges of the Paris tribunal de grande instance on 4 July 2000, at which he had subsequently voted in favour of the motion of support for Judge M., J.M. had stated: “We are not prohibited, as grassroots judges, from saying that we stand by Judge [M.]. It is not forbidden to say that Judge [M.] has our support and trust” (see paragraphs 27-28 above). 80. The Grand Chamber notes at the outset that the applicant acknowledged in his observations that it was not established that Judge J.M. had displayed any personal bias against him. He argued merely that regardless of his personal conduct, the very presence of J.M. on the bench created a situation which rendered his fears objectively justified and legitimate (see paragraph 67 above). 81. In the Court’s view, the case must therefore be examined from the perspective of the objective impartiality test, and more specifically it must address the question whether the applicant’s doubts, stemming from the specific situation, may be regarded as objectively justified in the circumstances of the case. 82. Accordingly, the Court firstly takes the view that the language used by Judge J.M. in support of a fellow judge, Judge M., who was precisely responsible for the bringing of criminal proceedings against the applicant in the case now in issue, was capable of raising doubts in the defendant’s mind as to the impartiality of the “tribunal” hearing his case. 83. Admittedly, the Government argued in their observations, among other things, that the remarks by J.M. were not sufficient to establish a lack of objective impartiality on his part, as they had been made a long time before and the words used reflected a personal position which concerned only the conditions in which the information regarding the bringing of disciplinary proceedings against a colleague of the same court had been forthcoming. 84. The Court takes the view, however, that the very singular context of the case cannot be overlooked. It would firstly point out that the case concerned a lawyer and a judge, who had been serving in that capacity in connection with two judicial investigations in particularly high-profile cases: the Borrel case, in the context of which the applicant’s impugned remarks had been made, and the “Scientology” case, which had given rise to the remarks by J.M. It further notes, like the Chamber, that Judge M. was already conducting the investigation in the Borrel case, with its significant media coverage and political repercussions, when J.M. publicly expressed his support for her in the context of the “Scientology” case (see also paragraph 29 above). As emphasised by the Chamber, J.M. had then expressed his view in an official setting, at the general meeting of judges of the Paris tribunal de grande instance. 85. The Court further observes that the applicant, who in both cases was the lawyer acting for civil parties who criticised the work of Judge M., was subsequently convicted on the basis of a complaint by the latter: accordingly, the professional conflict took on the appearance of a personal conflict, as Judge M. had applied to the domestic courts seeking redress for damage stemming from an offence that she accused the applicant of having committed. 86. The Court would further emphasise, on that point, that the judgment of the Court of Appeal to which the case had been remitted itself expressly established a connection between the applicant’s remarks in the proceedings in question and the “Scientology” case, concluding that this suggested, on the part of the applicant, an “ ex post facto settling of scores” and personal animosity towards Judge M., “with whom he had been in conflict in various cases” (see paragraph 50 above). 87. It was precisely that judgment of the Court of Appeal which the applicant appealed against on points of law and which was examined by the bench of the Criminal Division of the Court of Cassation on which Judge J.M. sat. The Court does not agree with the Government’s argument to the effect that this situation does not raise any difficulty, since an appeal on points of law is an extraordinary remedy and the review by the Court of Cassation is limited solely to the observance of the law. 88. In its case-law the Court has emphasised the crucial role of cassation proceedings, which form a special stage of the criminal proceedings with potentially decisive consequences for the accused, as in the present case, because if the case had been quashed it could have been remitted to a different court of appeal for a fresh examination of both the facts and the law. As the Court has stated on many occasions, Article 6 § 1 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation, but a State which does institute such courts is required to ensure that persons having access to the law enjoy before such courts the fundamental guarantees in Article 6 (see, among other authorities, Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11; Omar v. France, 29 July 1998, § 41, Reports 1998-V; Guérin v. France, 29 July 1998, § 44, Reports 1998-V; and Louis v. France, no. 44301/02, § 27, 14 November 2006), and this unquestionably includes the requirement that the court must be impartial. 89. Lastly, the Court takes the view that the Government’s argument to the effect that J.M. was sitting on an enlarged bench comprising ten judges is not decisive for the objective-impartiality issue under Article 6 § 1 of the Convention. In view of the secrecy of the deliberations, it is impossible to ascertain J.M.’s actual influence on that occasion. Therefore, in the context thus described (see paragraphs 84-86 above), the impartiality of that court could have been open to genuine doubt. 90. Furthermore, the applicant had not been informed that Judge J.M. would be sitting on the bench and had no reason to believe that he would do so. The Court notes that the applicant had, by contrast, been notified that the case would be examined by a reduced bench of the Criminal Division of the Court of Cassation, as is confirmed by the reporting judge’s report, the Court of Cassation’s online workflow for the case and three notices to parties, including two that were served after the date of the hearing (see paragraph 52 above). The applicant thus had no opportunity to challenge J.M.’s presence or to make any submissions on the issue of impartiality in that connection. 91. Having regard to the foregoing, the Court finds that in the present case the applicant’s fears could have been considered objectively justified. 92. The Court therefore concludes that there has been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 93. The applicant alleged that his criminal conviction had entailed a violation of his right to freedom of expression as provided for 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.” A. The Chamber judgment 94. The Chamber found that there had been no violation of Article 10 of the Convention. It noted that the applicant had not confined himself to factual statements concerning the ongoing proceedings, but had accompanied them with value judgments which cast doubt on the impartiality and fairness of a judge. 95. The Chamber, after noting that the investigating judge in question was no longer handling the case, took the view, firstly, that the applicant should have waited for the outcome of his request addressed the previous day to the Minister of Justice seeking an investigation by the General Inspectorate of Judicial Services into the alleged numerous shortcomings in the judicial investigation and, secondly, that the applicant had already successfully used a legal remedy to seek to cure any defects in the proceedings and the judge concerned by his remarks had been taken off the case. In view of the foregoing and the use of terms that the Chamber found particularly harsh, it took the view that the applicant had overstepped the limits that lawyers had to observe in publicly criticising the justice system. It added that its conclusion was reinforced by the seriousness of the accusations made in the article, and that, also having regard to the chronology of the events, it could be inferred that the applicant’s remarks were driven by a degree of personal animosity towards the judge. As to the “proportionality” of the sanction, the Chamber found that a fine of EUR 4,000, together with an award of EUR 7,500 in damages to each of the judges, did not appear excessive. B. The parties’ submissions before the Grand Chamber 1. The applicant 96. The applicant argued that the Court’s case-law guaranteed strong protection to the freedom of expression of lawyers, who played a key role in the administration of justice and the upholding of the rule of law, with any restriction having to remain exceptional. Such protection could be explained by two reasons: firstly, no special circumstances could justify affording a wide margin of appreciation to States, bearing in mind that European and international texts, on the contrary, protected lawyers in the activity of defending their clients; secondly, their freedom of expression was linked to their clients’ right to a fair trial under Article 6 of the Convention. He further observed that the right of lawyers to make press statements as part of their clients’ defence was expressly acknowledged and that, in principle, there was, at European level, significant tolerance of lawyers’ criticism of judges, even when made in a public and media setting. He submitted, however, that the Chamber judgment highlighted some major uncertainties and vagaries in the case-law that affected the exercise of such freedom, especially outside the courtroom. He hoped that his case would enable the Grand Chamber to clarify the interpretation of the Convention on that point and to secure the protection of lawyers’ speech. 97. He proposed in this connection a formal approach to lawyers’ freedom of expression, based on the defence and interests of their clients, to ensure special protection in this context for the purposes of Article 10 of the Convention. Such an approach would also have the effect of dispelling the ambiguity surrounding the status of lawyers, who participated in the smooth running of the justice system but, on the other hand, did not have to adopt a conciliatory posture vis-à-vis that system and its members, as their primary role was to defend their clients. Being a key witness to the proceedings, lawyers should be afforded a functional protection that was not limited to the courtroom and was as broad as possible, in order to contribute effectively to defending their clients and informing the public. Such a functional approach would also make it possible to take effective action in response to any excesses and abuses committed by lawyers in breach of professional ethics and to preserve the necessary protection of judges from frivolous accusations. Any abuse of the primary purpose of the strengthened protection of the lawyer’s freedom of expression, namely to uphold the rights of the defence, could thus entail sanctions. 98. In the present case, the applicant observed that his conviction could be regarded as an interference with the exercise of his right to freedom of expression. He did not dispute the fact that it was prescribed by law, namely by sections 23, 29 and 31 of the Act of 29 July 1881. 99. Whilst he did not deny, either, that it pursued the legitimate aim of the protection of the reputation or rights of others, in his view the idea that the criminal proceedings against him sought to “maintain the authority and impartiality of the judiciary” should be seriously called into question, as the impugned remarks were, on the contrary, intended to strengthen, rather than undermine, such authority. The applicant further submitted that the Chamber had wrongly placed on the same footing, on the one hand, the freedom of expression of lawyers and the public’s right to be informed about matters of general interest, and on the other, the dignity of the legal profession and the good reputation of judges; while the former were rights guaranteed by Article 10 of the Convention, the latter were merely interests that might warrant a restriction, which had to remain exceptional. 100. As to the interference and whether it was necessary in a democratic society, the applicant took the view that it did not correspond to any pressing social need and that it was not proportionate to the aims pursued. 101. The argument that there was no pressing social need was mainly supported by the context in which the remarks were made, because the case had received significant media coverage, as the Court had previously noted in its judgment in July and SARL Libération v. France (no. 20893/03, ECHR 2008) and as confirmed by the Chamber in paragraph 76 of its judgment. In addition, the status of the victim, the place and circumstances of his death, the diplomatic ramifications of the case, and the suspicions that the current President of the Republic of Djibouti might have been involved as the instigator, all showed that the case concerned a matter of general interest requiring strong protection of freedom of expression. Moreover, on 19 June 2007 the Paris public prosecutor had issued a press release stating that the theory of suicide had now been discounted in favour of a criminal explanation. That statement had been made at the request of the investigating judge under Article 11, paragraph 3, of the Code of Criminal Procedure (permitting the public disclosure of details of the case to avoid the dissemination of incomplete or inaccurate information, or to put an end to a breach of public order). The case was so sensitive that the investigation was now being handled by three investigating judges. 102. The applicant argued that the remarks regarding the shortcomings in the justice system, in the context of the lawyer’s duty to defend a client, could be deemed to merit even stronger protection. He denied going beyond the limits of permissible criticism: his comments concerned only the professional conduct of Judges M. and L.L., which was so crucial for the civil parties; the remarks had a sufficient factual basis which lay in two proven facts, firstly, the fact that the video-cassette in issue had not been transmitted to the new investigating judge with the rest of the case file and, secondly, the existence of the handwritten card from the prosecutor of Djibouti to Judge M.; moreover, the proceedings brought against the applicant and his colleague Mr L. de Caunes by Judges M. and L.L. for false accusation, following the letter sent by the lawyers to the Minister of Justice, had resulted in a discontinuance order, which had been upheld on appeal. 103. As to the accusation that he had shown personal animosity, the applicant rejected this, pointing out that only the content and subject of the impugned remarks should be taken into account, not any intentions that might be wrongly attributed to him. The applicant added that he was not responsible for the reference to the disciplinary proceedings pending against Judge M. and he noted that, in any event, Judge L.L. had also lodged a criminal complaint, without there being any suggestion of personal animosity towards that judge as well. The applicant also denied that any insults or abuse could be detected in the remarks published in Le Monde. Lastly, he submitted that he was merely defending his client’s position in public, keeping her interests in mind without going beyond the scope of his duty of defence. He was of the view, in that connection, that this could not have influenced the ministerial or judicial authorities and he moreover challenged the idea that legal action by a lawyer on behalf of his client should preclude any comments in the press where the case aroused public interest. He asserted that, on the contrary, a lawyer was entitled to decide freely on his defence strategy for the benefit of his client. 104. Lastly, the applicant submitted that the sanction imposed had been particularly disproportionate. The criminal sanction had consisted of a fine of EUR 4,000, which was higher than the fine imposed on the journalist and director of Le Monde (respectively EUR 3,000 and EUR 1,500). In the civil part of the judgment, in addition to the sums awarded to cover the costs of Judges M. and L.L., he had been ordered to pay, jointly with his co-defendants, EUR 7,500 in damages to each of the two judges. Lastly, the publication of a notice in Le Monde, with a fine of EUR 500 per day in the event of delay, had been ordered. He submitted that such sanctions were unjustified and disproportionate and that they would inevitably have a significant and regrettable chilling effect on all lawyers. 2. The Government 105. The Government did not deny that the applicant’s conviction constituted an interference with the exercise of his right to freedom of expression. They took the view, however, that this interference was prescribed by law, since its legal basis lay in section 23 and sections 29 et seq. of the Act of 29 July 1881, and that it pursued a legitimate aim. On that latter point they argued that it sought to maintain the authority and impartiality of the judiciary, and to ensure the protection of the reputation or rights of others, since the statements had been directed at judges in the exercise of their duties and also undermined the confidence of citizens in the judiciary. 106. As to whether the interference was necessary in a democratic society, the Government were of the view that there was a fundamental difference between lawyers and journalists because of the former’s position as officers of the court ( auxiliaires de justice ). They occupied a central position as intermediaries between the public and the courts and their activities helped to ensure that justice was administered effectively and dispassionately. A balance had to be struck between the legitimate aim of informing the public about matters of general interest, including issues relating to the functioning of the justice system, and the requirements stemming from the proper administration of justice, on the one hand, and the dignity of the legal profession and the reputation of the judiciary, on the other. 107. The Government noted two different situations in the Court’s case-law on freedom of expression: the participation of lawyers in debates on matters of general interest unrelated to any pending proceedings, where freedom of expression was particularly broad; and statements made by lawyers in their role of defending clients, where they had a wide freedom of expression in the courtroom. That freedom of expression in defending a client in pending proceedings did have certain limits, however, in order to preserve judicial authority, such as, for example, where the lawyer made statements critical of the justice system before even using the legal remedies available to him to rectify the shortcomings in question. The Government submitted that lawyers, as officers of the court, were thus obliged to use legal proceedings to correct any alleged errors; by contrast, harsh criticism in the press, where legal means could be used instead, was not justified by the requirements of the effective defence of the lawyer’s client and cast doubt on the probity of the justice system. 108. In the present case the Government took the view that there had been numerous possible judicial remedies open to the applicant for the effective defence of his client and that he had in fact made use of them. His statements in the media could therefore only have been for the purpose of informing the public about a subject of general interest, but, as they concerned an ongoing case, he should have spoken with moderation. 109. In examining the impugned remarks, the Government referred to the margin of appreciation afforded to States in such matters. The article in question concerned a particularly sensitive case which, from the outset, had received significant media coverage. In their view, it could be seen from the article in Le Monde that the offending remarks were aimed, unequivocally, at the two judges and were phrased in terms that impugned their honour. The applicant had not confined himself to a general criticism of the institutions but had expressed biased views, without the slightest prudence. In the Government’s submission, he had not made factual statements regarding the functioning of the judicial system, but rather value judgments that cast serious doubt on the investigating judges’ integrity. The Government stated that the domestic courts had carefully examined each of the statements in question to establish whether they went beyond the limits of acceptable criticism. They further submitted that the evidence produced by the applicant was devoid of probative value. 110. Concerning the applicant’s unsuccessful defence of good faith, based on the duties inherent in his responsibility to defend his client’s interests, the Government observed that the French courts had assessed good faith in the light of Article 10 of the Convention and the four criteria that had to be fulfilled concurrently: the legitimacy of the aim pursued, the absence of personal animosity, the seriousness of the investigation carried out or of the evidence obtained by the author of the comments and, lastly, the prudence shown in expressing them. The domestic courts had taken the view that those conditions had not been fulfilled in the present case and had regarded the applicant’s remarks as a settling of scores with a judge. The applicant was at fault not for expressing himself outside the courtroom, but for using excessive comments, whereas he could have expressed himself without impugning the honour of State officials. 111. The Government submitted that such attacks on judges did not contribute either to a clear public understanding of the issues, since the judicial authority had no right of reply, or to the proper conduct of the judicial proceedings in a context in which the investigating judge who was the subject of the harsh criticism had already been removed from the case. In their view, neither was it a matter of zealous defence by a lawyer of his client, because there were judicial remedies that he could have used to submit his complaint. The Government referred to the Court’s inadmissibility decision in Floquet and Esménard v. France ((dec.), nos. 29064/08 and 29979/08, 10 January 2012), which concerned comments made by journalists in the Borrel case, particularly as, in the present case, it was not a journalist but a lawyer who was the author of the impugned statements, and moreover in a case that was pending in the domestic courts. 112. As to the sanction imposed on the applicant, the Government were of the view that it could not be regarded as excessive or such as to have a chilling effect on the exercise of freedom of expression. They thus submitted that there had been no violation of Article 10 of the Convention. C. Observations of the third-party interveners before the Grand Chamber 1. Observations of the Council of Bars and Law Societies of Europe (CCBE) 113. The CCBE observed that the Court’s judgment in the present case would most certainly have a considerable impact on the conditions of interpretation and application of the standards of conduct imposed on European lawyers and more particularly with regard to their freedom of speech and expression in the context of the exercise of defence rights. Lawyers held a key position in the administration of justice and it was necessary to protect their specific status. Being the cornerstone of a democratic society, freedom of expression had a particular characteristic as regards lawyers, who had to be able to carry on their profession without hindrance; if the use of their speech were to be censored or restricted, the real and effective defence of the citizen would not be guaranteed. 114. The CCBE referred to the Court’s case-law to the effect that a restriction of freedom of expression would entail a violation of Article 10 unless it fell within the exceptions mentioned in paragraph 2 of that Article. The examination criteria related to the existence of an interference, its legal foreseeability, whether it was necessary in a democratic society to meet a “pressing social need” and the specific circumstances of the case. In the CCBE’s view, these criteria were all the more valid where a lawyer defending Convention rights was concerned. 115. The limits to freedom of expression had firstly to be reasonably foreseeable, with a more restrictive and precise definition of the criteria relating to the restrictions that could be placed on lawyers’ freedom of expression. The CCBE noted discrepancies in the assessment by the various Sections of the Court: in a related case (see July and SARL Libération, cited above) the Court had found a violation of Article 10, whereas the Chamber in the present case had found no violation. In the CCBE’s view such discrepancies in assessment appeared to be the result of different approaches to the remarks of a lawyer: a degree of immunity applied to any views, however harsh, on the justice system or a court, whilst criticism of a judge did not enjoy such immunity. Such a distinction was extremely difficult to apply and gave rise to almost insurmountable problems, on account of the interdependence between the general and the personal in the conduct of proceedings, together with the fact that, in an inquisitorial system, judicial office could not be separated from the institution itself. 116. As the present case concerned freedom of expression outside the courtroom, the limits also had to take account of the fact that in sensitive and high-profile cases, and especially in those where reasons of State were at stake, lawyers often had no choice but to speak publicly to voice concerns regarding a hindrance to the proper conduct of the proceedings. In such cases, lawyers should have the same freedom of speech and expression as journalists. To restrict their freedom of expression, particularly when the proceedings were part of an inquisitorial system as in France, would prevent them from contributing to the proper administration of justice and ensuring public confidence therein. 117. The CCBE observed that as soon as a case attracted media attention, and, more particularly, where reasons of State were at stake, the rights of the defence, in certain cases, could only be meaningfully safeguarded by means of a public statement, even one that was somewhat vocal. Referring to the Court’s findings in Mor v. France (no. 28198/09, § 42, 15 December 2011), it took the view that the fact that neither the competent judicial authority nor the professional disciplinary body had initiated proceedings would provide a foreseeable test in relation to the uncertainties surrounding any inappropriate action by a judge, whose office could not be distinguished from the judicial authority itself. 2. Joint observations of the Paris Bar Association, the National Bar Council and the Conference of Chairmen of French Bars 118. These third-party interveners pointed out, firstly, that until recently the issue of a lawyer’s freedom of speech had arisen only inside the courtroom, and that in the context of defending a client at a hearing, the lawyer was protected by immunity from legal proceedings, an immunity which covered pleadings and oral argument before a court, under section 41 of the Act of 29 July 1881. This immunity authorised remarks which could be considered offensive, defamatory or injurious. 119. In their view, the point of principle in the present case was the lawyer’s freedom of expression to defend his client when he was addressing the press, where the case had attracted a certain level of public interest. The resulting issue was how to determine when comments became excessive, however strong they might be, if they affected an opponent, a judge or a fellow lawyer. 120. Every lawyer, however well known, was the custodian of the client’s word. When a case came to public attention, it was the lawyer’s responsibility to continue to defend that client, whether by taking any necessary ad hoc proceedings or by adding his own voice to the media storm, as had become the norm. This was no longer a lawyer’s right but a duty attached to his position, whether the story of the case broke some time before any public hearing, as was often the case, or later. 121. Lawyers were entitled to criticise the court’s ruling and to relay any criticism their clients might wish to make. The lawyer’s comments were then necessarily interpreted and received by the public as partial and subjective. The parallel between the judge’s duty of discretion and the lawyer’s freedom of speech was not convincing. Whilst the word of the judge would be received as objective, the words of the lawyer were taken as the expression of a protest by a party. It was not unusual, therefore, for a judge to be obliged to remain silent, whilst comments by a lawyer, for a party to the proceedings, would in no way disrupt the independence and authority of the justice system. 122. The third-party interveners observed that, while the French courts had always strictly applied the immunity referred to in section 41 of the 1881 Act to judicial comments alone, they were not unaware that lawyers had to contend with certain developments when their cases attracted media attention. They cited a recent example from a high-profile case where a lawyer had been prosecuted for defaming a lawyer for the opposing party. The Paris tribunal de grande instance had accepted his plea of good faith, even though his comments had been particularly excessive and based only on his personal belief, as “they came from a passionate lawyer who dedicated all of his energy to defending his client and who could not restrict his freedom of expression on the sole ground that he was referring to his case in front of journalists rather than addressing judges” (final judgment of the Seventeenth Division of the Paris tribunal de grande instance of 20 October 2010). The distinction between judicial and extrajudicial expression had therefore become outdated. The word of a lawyer was in fact based on a duty to inform; like journalists, lawyers were also “watchdogs of democracy”. 123. The third-party interveners submitted, lastly, that there was an obligation of proportionality in such matters both for lawyers and for the State. Lawyers had a very difficult role and this duty of proportionality reflected their duties of sensitivity and moderation, from which they could depart only where this was justified by the defence of their client and by the attacks or pressure they were under. As regards the State, the third-party interveners were of the view that lawyers should normally be granted immunity where their comments, however excessive, were linked to the defence of their client’s interests. Any restriction on their right to express their views should be exceptional, the test being whether or not the comments were detachable from the defence of the client. The margin of freedom of expression for lawyers, which had to remain as broad as that of journalists, should take account of the constraints faced by them and the increased media attention, with a press that was increasingly curious and probing. D. The Court’s assessment 1. General principles (a) Freedom of expression 124. The general principles concerning the necessity of an interference with freedom of expression, reiterated many times by the Court since its 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 restated more recently in Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, § 100, ECHR 2013), 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 ...” 125. Moreover, as regards the level of protection, 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 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; and Axel Springer AG v. Germany [GC], no. 39954/08, § 90, 7 February 2012). 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 in respect of the other defendants (see Roland Dumas v. France, no. 34875/07, § 43, 15 July 2010, and Gouveia Gomes Fernandes and Freitas e Costa v. Portugal, no. 1529/08, § 47, 29 March 2011). A degree of hostility (see E.K. v. Turkey, no. 28496/95, §§ 79-80, 7 February 2002) and the potential seriousness of certain remarks (see Thoma v. Luxembourg, no. 38432/97, § 57, ECHR 2001-III) 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). 126. Furthermore, in its judgments in Lingens v. Austria (8 July 1986, § 46, Series A no. 103) and Oberschlick v. Austria (no. 1) (23 May 1991, § 63, Series A no. 204), the Court drew a distinction between statements of fact and value judgments. The existence of facts can be demonstrated, whereas 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 De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports 1997-I). However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient “factual basis” for the impugned statement: if there is not, that value judgment may prove excessive (see De Haes and Gijsels, cited above, § 47; Oberschlick v. Austria (no. 2), 1 July 1997, § 33, Reports 1997-IV; Brasilier v. France, no. 71343/01, § 36, 11 April 2006; and Lindon, Otchakovsky-Laurens and July, cited above, § 55). 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 (see Brasilier, cited above, § 37), bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Paturel, cited above, § 37). 127. Lastly, the nature and severity of the sanctions imposed are also factors to be taken into account when assessing the proportionality of the interference. As the Court has previously pointed out, interference with freedom of expression may have a chilling effect on the exercise of that freedom. The relatively moderate nature of the fines does not suffice to negate the risk of a chilling effect on the exercise of freedom of expression, this being all the more unacceptable in the case of a lawyer who is required to ensure the effective defence of his clients (see Mor, cited above, § 61). Generally speaking, while it is legitimate for the institutions of the State, as guarantors of the institutional public order, to be protected by the competent authorities, the dominant position occupied by those institutions requires the authorities to display restraint in resorting to criminal proceedings (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; and Otegi Mondragon v. Spain, no. 2034/07, § 58, ECHR 2011). (b) Maintaining the authority of the judiciary 128. Questions concerning the functioning of the justice system, an institution that is essential for any democratic society, fall within the public interest. In this connection, regard must be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a State governed by the rule of law, it must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect such confidence against gravely damaging attacks that are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying (see Prager and Oberschlick v. Austria, 26 April 1995, § 34, Series A no. 313; Karpetas v. Greece, no. 6086/10, § 68, 30 October 2012; and Di Giovanni v. Italy, no. 51160/06, § 71, 9 July 2013). 129. The phrase “authority of the judiciary” includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the resolution of legal disputes and for the determination of a person’s guilt or innocence on a criminal charge; further, that the public at large have respect for and confidence in the courts’ capacity to fulfil that function (see Worm v. Austria, 29 August 1997, § 40, Reports 1997-V, and Prager and Oberschlick, cited above). 130. What is at stake is the confidence which the courts in a democratic society must inspire not only in the accused, as far as criminal proceedings are concerned (see Kyprianou, cited above, § 172), but also in the public at large (see Kudeshkina v. Russia, no. 29492/05, § 86, 26 February 2009, and Di Giovanni, cited above). 131. Nevertheless – save in the case of gravely damaging attacks that are essentially unfounded – bearing in mind that judges form part of a fundamental institution of the State, they may as such be subject to personal criticism within the permissible limits, and not only in a theoretical and general manner (see July and SARL Libération, cited above, § 74). When acting in their official capacity they may thus be subject to wider limits of acceptable criticism than ordinary citizens (ibid.). (c) The status and freedom of expression of lawyers 132. The specific status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. They therefore play a key role in ensuring that the courts, whose mission is fundamental in a State based on the rule of law, enjoy public confidence (see Schöpfer v. Switzerland, 20 May 1998, §§ 29-30, Reports 1998-III; Nikula v. Finland, no. 31611/96, § 45, ECHR 2002-II; Amihalachioaie v. Moldova, no. 60115/00, § 27, ECHR 2004-III; Kyprianou, cited above, § 173; André and Another v. France, no. 18603/03, § 42, 24 July 2008; and Mor, cited above, § 42). However, for members of the public to have confidence in the administration of justice they must have confidence in the ability of the legal profession to provide effective representation (see Kyprianou, cited above, § 175). 133. That special role of lawyers, as independent professionals, in the administration of justice entails a number of duties, particularly with regard to their conduct (see Van der Mussele v. Belgium, 23 November 1983, Series A no. 70; Casado Coca v. Spain, 24 February 1994, § 46, Series A no. 285-A; Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003-XI; Veraart v. the Netherlands, no. 10807/04, § 51, 30 November 2006; and Coutant v. France (dec.), no. 17155/03, 24 January 2008). Whilst they are subject to restrictions on their professional conduct, which must be discreet, honest and dignified, they also enjoy exclusive rights and privileges that may vary from one jurisdiction to another – among them, usually, a certain latitude regarding arguments used in court (see Steur, cited above). 134. Consequently, freedom of expression is applicable also to lawyers. It encompasses not only the substance of the ideas and information expressed but also the form in which they are conveyed (see Foglia v. Switzerland, no. 35865/04, § 85, 13 December 2007). Lawyers are thus entitled, in particular, to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds (see Amihalachioaie, cited above, §§ 27-28; Foglia, cited above, § 86; and Mor, cited above, § 43). Those bounds lie in the usual restrictions on the conduct of members of the Bar (see Kyprianou, cited above, § 173), as reflected in the ten basic principles enumerated by the CCBE for European lawyers, with their particular reference to “dignity”, “honour” and “integrity” and to “respect for ... the fair administration of justice” (see paragraph 58 above). Such rules contribute to the protection of the judiciary from gratuitous and unfounded attacks, which may be driven solely by a wish or strategy to ensure that the judicial debate is pursued in the media or to settle a score with the judges handling the particular case. 135. The question of freedom of expression is related to the independence of the legal profession, which is crucial for the effective functioning of the fair administration of justice (see Siałkowska v. Poland, no. 8932/05, § 111, 22 March 2007). It is only in exceptional cases that restriction – even by way of a lenient criminal penalty – of defence counsel’s freedom of expression can be accepted as necessary in a democratic society (see Nikula, cited above, § 55; Kyprianou, cited above, § 174; and Mor, cited above, § 44). 136. A distinction should, however, be drawn depending on whether the lawyer expresses himself in the courtroom or elsewhere. 137. As regards, firstly, the issue of “conduct in the courtroom”, since the lawyer’s freedom of expression may raise a question as to his client’s right to a fair trial, the principle of fairness thus also militates in favour of a free and even forceful exchange of argument between the parties (see Nikula, cited above, § 49, and Steur, cited above, § 37). Lawyers have the duty to “defend their clients’ interests zealously” (see Nikula, cited above, § 54), which means that they sometimes have to decide whether or not they should object to or complain of the conduct of the court (see Kyprianou, cited above, § 175). In addition, the Court takes into consideration the fact that the impugned remarks are not repeated outside the courtroom and it makes a distinction depending on the person concerned; thus, a prosecutor, who is a “party” to the proceedings, has to “tolerate very considerable criticism by ... defence counsel”, even if some of the terms are inappropriate, provided they do not concern his general professional or other qualities (see Nikula, cited above, §§ 51-52; Foglia, cited above, § 95; and Roland Dumas, cited above, § 48). 138. Turning now to remarks made outside the courtroom, the Court reiterates that the defence of a client may be pursued by means of an appearance on the television news or a statement in the press, and through such channels the lawyer may inform the public of shortcomings that are likely to undermine pre-trial proceedings (see Mor, cited above, § 59). The Court takes the view, in this connection, that a lawyer cannot be held responsible for everything published in the form of an “interview”, in particular where the press has edited the statements and he or she has denied making certain remarks (see Amihalachioaie, cited above, § 37). In the above-cited Foglia case, it also found that lawyers could not justifiably be held responsible for the actions of the press (see Foglia, cited above, § 97). Similarly, where a case is widely covered in the media on account of the seriousness of the facts and the individuals likely to be implicated, a lawyer cannot be penalised for breaching the secrecy of the judicial investigation where he or she has merely made personal comments on information which is already known to the journalists and which they intend to report, with or without those comments. Nevertheless, when making public statements, a lawyer is not exempted from his duty of prudence in relation to the secrecy of a pending judicial investigation (see Mor, cited above, §§ 55-56). 139. Lawyers cannot, moreover, make remarks that are so serious that they overstep the permissible expression of comments without a sound factual basis (see Karpetas, cited above, § 78; see also A. v. Finland (dec.), no. 44998/98, 8 January 2004), nor can they proffer insults (see Coutant, cited above). In the circumstances in Gouveia Gomes Fernandes and Freitas e Costa (cited above, § 48), the use of a tone that was not insulting but caustic, or even sarcastic, in remarks about judges was regarded as compatible with Article 10. The Court assesses remarks in their general context, in particular to ascertain whether they can be regarded as misleading or as a gratuitous personal attack (see Ormanni v. Italy, no. 30278/04, § 73, 17 July 2007, and Gouveia Gomes Fernandes and Freitas e Costa, cited above, § 51) and to ensure that the expressions used have a sufficiently close connection with the facts of the case (see Feldek v. Slovakia, no. 29032/95, § 86, ECHR 2001 ‑ VIII, and Gouveia Gomes Fernandes and Freitas e Costa, cited above). 2. Application of those principles in the present case 140. Turning to the present case, the Court observes that the applicant received a criminal conviction, with an order to pay damages and costs, on account of his remarks concerning the proceedings in the Borrel case, as reproduced in an article in the daily newspaper Le Monde, which contained the text of a letter sent by the applicant and his colleague to the Minister of Justice seeking an administrative investigation, together with statements that he had made to the journalist who wrote the impugned article. 141. The Court notes at the outset that it is not in dispute between the parties that the applicant’s criminal conviction constituted an interference with the exercise of his right to freedom of expression, as guaranteed by Article 10 of the Convention. That is also the Court’s opinion. 142. It further observes that the interference was prescribed by law, namely by sections 23, 29 and 31 of the Act of 29 July 1881, as the applicant acknowledged. 143. The parties also agreed that the aim of the interference was the protection of the reputation or rights of others. The Court does not see any reason to adopt a different view. While the applicant wished to qualify the point that the proceedings against him also sought to “maintain the authority and impartiality of the judiciary” (see paragraph 99 above), this question relates to the “necessity” of the interference and cannot affect the fact that it pursued at least one of the “legitimate aims” covered by paragraph 2 of Article 10. 144. It remains therefore to be examined whether the interference was “necessary in a democratic society” and this requires the Court to ascertain whether it was proportionate to the legitimate aim pursued and whether the grounds given by the domestic courts were relevant and sufficient. 145. The Court notes that, in convicting the applicant, the Court of Appeal took the view that to say that an investigating judge had shown “conduct which [was] completely at odds with the principles of impartiality and fairness” was in itself a particularly defamatory accusation (see paragraph 47 above). That court added that the applicant’s comments concerning the delay in forwarding the video-cassette and his reference to the handwritten card from the public prosecutor of Djibouti to Judge M., in respect of which the applicant had used the term “connivance”, merely confirmed the defamatory nature of the accusation (ibid.), the “veracity” of the allegations not having been established (see paragraph 48 above) and the applicant’s defence of good faith being rejected (see paragraph 49 above). (a) The applicant’s status as a lawyer 146. The Court observes, firstly, that the remarks in question stemmed both from statements made at the request of the journalist who wrote the article and from the letter to the Minister of Justice. The remarks were made by the applicant in his capacity as a lawyer acting for the civil party and concerned matters relating to the proceedings in the Borrel case. 147. In this connection the Court notes at the outset that the applicant has invited it to clarify its case-law concerning the exercise of freedom of expression by a lawyer, particularly outside the courtroom, and to afford the greatest possible protection to comments by lawyers (see paragraphs 96, 97 and 102 above). The Government, for their part, while taking the view that their status as officers of the court fundamentally distinguished lawyers from journalists (see paragraph 106 above), identified various situations in which freedom of expression would be “particularly broad”, “wide”, or, on the contrary, subject to “certain limits” (see paragraph 107 above). 148. The Court would refer the parties to the principles set out in its case-law, particularly with regard to the status and freedom of expression of lawyers (see paragraphs 132-39 above), with emphasis on the need to distinguish between remarks made by lawyers inside and outside the courtroom. Moreover, in view of the specific status of lawyers and their position in the administration of justice (see paragraph 132 above), the Court takes the view, contrary to the argument of the CCBE (see paragraph 116 above), that lawyers cannot be equated with journalists. Their respective positions and roles in judicial proceedings are intrinsically different. Journalists have the task of imparting, in conformity with their duties and responsibilities, information and ideas on all matters of public interest, including those relating to the administration of justice. Lawyers, for their part, are protagonists in the justice system, directly involved in its functioning and in the defence of a party. They cannot therefore be equated with an external witness whose task it is to inform the public. 149. The applicant argued that his statements, as published in the newspaper Le Monde, served precisely to fulfil his task of defending his client – a task that was for him to determine. However, while it is not in dispute that the impugned remarks fell within the context of the proceedings, they were aimed at investigating judges who had been removed from the proceedings with final effect at the time they were made. The Court therefore fails to see how his statements could have directly contributed to his task of defending his client, since the judicial investigation had by that time been entrusted to another judge who was not the subject of the criticism. (b) Contribution to a debate on a matter of public interest 150. The applicant further relied on his right to inform the public of shortcomings in the handling of ongoing proceedings and to contribute to a debate on a matter of public interest. 151. On that point, the Court notes, firstly, that the applicant’s remarks were made in the context of the judicial investigation opened following the death of a French judge, Bernard Borrel, who had been seconded to the Djibouti Ministry of Justice as a technical adviser. The Court has already had occasion to note the significant media interest shown in this case from the outset (see July and SARL Libération, cited above, § 67), thus reflecting its prominence in public opinion. Like the applicant, the Court notes, moreover, that the justice system also contributed to informing the public of this case, as the investigating judge handling the case in 2007 asked the public prosecutor to issue a press release, under Article 11, paragraph 3, of the Code of Criminal Procedure, to announce that the suicide theory had been dismissed in favour of one of premeditated murder (see paragraphs 24 and 55 above). 152. In addition, as the Court has previously found, the public have a legitimate interest in the provision and availability of information regarding criminal proceedings (see July and SARL Libération, cited above, § 66) and remarks concerning the functioning of the judiciary relate to a matter of public interest (see paragraph 125 above). The Court has in fact already been called upon on two occasions, in Floquet and Esménard and July and SARL Libération (both cited above), to examine complaints relating to the Borrel case and to the right to freedom of expression in respect of comments on the handling of the judicial investigation, finding in each of those cases that there was a debate on a matter of public interest. 153. Accordingly, the Court takes the view that the applicant’s impugned remarks, which also concerned, as in the said judgments in Floquet and Esménard and July and SARL Libération, the functioning of the judiciary and the handling of the Borrel case, fell within the context of a debate on a matter of public interest, thus calling for a high level of protection of freedom of expression, with a particularly narrow margin of appreciation accordingly being afforded to the authorities. (c) The nature of the impugned remarks 154. The Court notes that after the applicant’s remarks had been found “particularly defamatory” he had been unable to establish their veracity on the basis of evidence that, according to the Criminal Court, had to “be flawless and complete and relate directly to all the allegations found to be defamatory” (see paragraph 40 above). His defence of good faith was also rejected. On that point, the Criminal Court and the Court of Appeal took the view, in particular, that the attacks on the professional and moral integrity of Judges M. and L.L. clearly overstepped the right of permissible criticism (see paragraphs 40 and 50 above). In addition, while the Criminal Court took the view that the profound disagreements between Mrs Borrel’s lawyers and the investigating judges could not justify a total lack of prudence in their expression, the Court of Appeal concluded that the decision in the applicant’s favour to discontinue the proceedings brought against him by the two judges did not rule out bad faith on his part. It held that the applicant’s personal animosity and the wish to discredit the judges, in particular Judge M., stemmed from the excessive nature of his comments and from the fact that the article on the Borrel case had been published at the same time as the bringing of proceedings against Judge M. before the Indictment Division in connection with the “Scientology” case (ibid.). 155. As the Court has already observed, it is necessary to distinguish between statements of fact and value judgments (see paragraph 126 above). The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof; a 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 (ibid.). In addition, the existence of procedural safeguards for the benefit of a defendant in defamation proceedings is among the factors to be taken into account in assessing the proportionality of an interference under Article 10. In particular, it is important for the defendant to be afforded a realistic chance to prove that there was a sufficient factual basis for his allegations (see, among other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR 2005-II; Andrushko v. Russia, no. 4260/04, § 53, 14 October 2010; Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 141, 4 March 2014; and Hasan Yazıcı v. Turkey, no. 40877/07, § 54, 15 April 2014). No such chance was afforded in the present case. 156. The Court takes the view that, in the circumstances of the case, the impugned statements were more value judgments than pure statements of fact, in view of the general tone of the remarks and the context in which they were made, as they reflected mainly an overall assessment of the conduct of the investigating judges in the course of the investigation. 157. It thus remains to be examined whether the “factual basis” for those value judgments was sufficient. 158. The Court is of the opinion that this condition was fulfilled in the present case. After the case had been withdrawn from Judges M. and L.L. by the Indictments Division of the Paris Court of Appeal (see paragraph 23 above), it became apparent that an important item of evidence in the file, namely a video-cassette recorded during a visit by the judges, accompanied by experts, to the scene of the death, even though it had been referred to in the last decision given by those judges, had not been forwarded with the investigation file to the judge appointed to replace them. That fact was not only established but it was also sufficiently serious to justify the drafting by Judge P. of a report in which he recorded the following: firstly, the video-cassette did not appear in the investigation file and was not registered as an exhibit; and secondly, it had been given to him in an envelope, which showed no sign of having been placed under seal, bearing the name of Judge M. as addressee and also containing a handwritten card with the letter head of the public prosecutor of Djibouti, written by him and addressed to Judge M. (see paragraph 32 above). 159. Moreover, in addition to the fact that the card showed a certain friendliness on the part of the public prosecutor of Djibouti towards Judge M. (see paragraph 32 above), it accused the civil parties’ lawyers of “orchestrating their manipulation”. The Court would emphasise in this connection that, not only have the Djibouti authorities supported the theory of suicide from the outset, but also a number of representatives of that State have been personally implicated in the context of the judicial investigation conducted in France, as can be seen in particular from the judgment of the International Court of Justice (see paragraphs 63-64 above) and from the proceedings brought on a charge of procuring of false evidence (see paragraph 18 above). 160. Lastly, it has been established that the applicant acted in his capacity as a lawyer in two high-profile cases in which Judge M. was an investigating judge. In both of them the applicant succeeded in obtaining findings by the appellate courts that there had been shortcomings in the proceedings, leading to the withdrawal of the cases from Judge M. (see paragraphs 22-23 and 26 above). In the context of the first case, known as the “Scientology” case, the applicant additionally secured a ruling that the French State was liable for the malfunctioning of the justice system (see paragraph 30 above). 161. It further considers that the expressions used by the applicant had a sufficiently close connection with the facts of the case, in addition to the fact that his remarks could not be regarded as misleading or as a gratuitous attack (see paragraph 139 above). It reiterates in this connection that freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. Similarly, the use of a “caustic tone” in comments aimed at a judge is not incompatible with the provisions of Article 10 of the Convention (see, for example, Gouveia Gomes Fernandes and Freitas e Costa, cited above, § 48). (d) The specific circumstances of the case (i) The need to take account of the overall background 162. The Court reiterates that, in the context of Article 10 of the Convention, it must take account of the circumstances and overall background against which the statements in question were made (see, among many other authorities, Lingens, cited above, § 40, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III). In the present case, the background can be explained not only by the conduct of the investigating judges and by the applicant’s relations with one of them, but also by the very specific history of the case, its inter-State dimension and its substantial media coverage. The Court would observe, however, that the Court of Appeal attributed an extensive scope to the impugned remark of the applicant criticising an investigating judge for “conduct which [was] completely at odds with the principles of impartiality and fairness”, finding that this was in itself a particularly defamatory accusation, tantamount to saying that there had been a breach of professional ethics and of the judicial oath on the part of that judge (see paragraph 47 above). That quotation should, however, have been assessed in the light of the specific circumstances of the case, especially as it was in reality not a statement made to the author of the article, but an extract from the letter sent by the applicant and his colleague, Mr L. de Caunes, to the Minister of Justice on 6 September 2000. In addition, at the time when the applicant answered his questions the journalist had already been informed of the letter to the Minister of Justice, not by the applicant himself, but by his own sources, as the Criminal Court acknowledged (see paragraph 40 above). The applicant further argued, without this being in dispute, that the article’s author was solely responsible for the reference to the disciplinary proceedings against Judge M. in the context of the “Scientology” case. In that connection, the Court reiterates that lawyers cannot be held responsible for everything appearing in an “interview” published by the press or for actions by the press. 163. The Court of Appeal was thus required to examine the impugned remarks with full consideration of both the background to the case and the content of the letter, taken as a whole. 164. For the same reasons, since the impugned remarks could not be assessed out of context, the Court cannot share the view of the Paris Court of Appeal that the use of the term “connivance” constituted “in itself” a serious attack on the honour and reputation of Judge M. and the public prosecutor of Djibouti (see paragraph 47 above). 165. As to the question of personal animosity on the part of the applicant towards Judge M., on account of conflicts in the context of the Borrel and “Scientology” cases, the Court takes the view that this aspect was insufficiently relevant and serious to warrant the applicant’s conviction. In any event, since the courts acknowledged the existence of conflicts between the two protagonists, and in view of the particular circumstances of the present case, such a reproach of personal animosity could have been made as much to Judge M. as to the applicant (see, mutatis mutandis, Paturel, cited above, § 45), especially as before filing a complaint against the applicant for complicity in defamation Judge M. had already unsuccessfully filed a complaint against him for false accusation (see paragraph 35 above). The Court of Appeal’s reliance on the applicant’s personal animosity is also at least undermined, if not contradicted, by other factors. Firstly, the remark concerning “conduct which [was] completely at odds with the principles of impartiality and fairness” was directed not only at Judge M., but also at Judge L.L., in respect of whom the applicant was not accused of showing any personal animosity. Furthermore, while the proceedings against the applicant concerned the above-cited extract from the letter to the Minister of Justice, that letter had in reality been signed and sent by two lawyers, the applicant and his colleague, Mr L. de Caunes. In the case of the latter, however, not only has he not been prosecuted for remarks that were attributable as much to him as to the applicant, he has not been accused of showing any animosity towards Judge M. or Judge L.L. 166. In conclusion, the Court considers that the applicant’s statements could not be reduced to the mere expression of personal animosity, that is to say an antagonistic relationship between two individuals, the applicant and Judge M. The impugned remarks fell, in reality, within a broader context, also involving another lawyer and another judge. In the Court’s opinion, that fact is capable of supporting the idea that the remarks were not part of any personal action on the part of the applicant, out of a desire for vengeance, but rather formed part of a joint professional initiative by two lawyers, on account of facts that were new, established and capable of revealing serious shortcomings in the justice system, involving the two judges who had formerly been conducting the investigation in a case in which the two lawyers’ clients were civil parties. 167. In addition, while the applicant’s remarks certainly had a negative connotation, it should be pointed out that, notwithstanding their somewhat hostile nature (see E.K. v. Turkey, cited above, §§ 79-80) and seriousness (see Thoma, cited above), the key question in the statements concerned the functioning of a judicial investigation, which was a matter of public interest, thus leaving little room for restrictions on freedom of expression. In addition, a lawyer should be able to draw the public’s attention to potential shortcomings in the justice system; the judiciary may benefit from constructive criticism. (ii) Maintaining the authority of the judiciary 168. The Government relied on the fact that the judicial authorities had no right of reply. It is true that the particular task of the judiciary in society requires judges to observe a duty of discretion (see paragraph 128 above). However, that duty pursues a specific aim, as noted by the third-party interveners: the speech of judges, unlike that of lawyers, is received as the expression of an objective assessment which commits not only the person expressing himself, but also, through him, the entire justice system. Lawyers, for their part, merely speak in their own name and on behalf of their clients, thus also distinguishing them from journalists, whose role in the judicial debate and purpose are intrinsically different. Nevertheless, while it may prove necessary to protect the judiciary against gravely damaging attacks that are essentially unfounded, bearing in mind that judges are prevented from reacting by their duty of discretion (see paragraph 128 above), this cannot have the effect of prohibiting individuals from expressing their views, through value judgments with a sufficient factual basis, on matters of public interest related to the functioning of the justice system, or of banning any criticism of the latter. In the present case, Judges M. and L.L. were members of the judiciary and were thus both part of a fundamental institution of the State: they were therefore subject to wider limits of acceptable criticism than ordinary citizens and the impugned comments could therefore be directed against them in that capacity (see paragraphs 128 and 131 above). 169. The Court further finds, contrary to what has been argued by the Government, that the applicant’s remarks were not capable of undermining the proper conduct of the judicial proceedings, in view of the fact that the higher court had withdrawn the case from the two investigating judges concerned by the criticisms. Neither the new investigating judge nor the higher courts were targeted in any way by the impugned remarks. 170. Nor can it be considered, for the same reasons and taking account of the foregoing, that the applicant’s conviction could serve to maintain the authority of the judiciary. The Court would nevertheless emphasise the importance, in a State governed by the rule of law and in a democratic society, of maintaining the authority of the judiciary. In any event, the proper functioning of the courts would not be possible without relations based on consideration and mutual respect between the various protagonists in the justice system, at the forefront of which are judges and lawyers. (iii) The use of available remedies 171. With regard to the Government’s argument as to the possibility of using available remedies, the Court finds it pertinent but not sufficient in the present case to justify the applicant’s conviction. It first notes that the use of available remedies, on the one hand, and the right to freedom of expression, on the other, do not pursue the same aim and are not interchangeable. That being said, the Court takes the view that the defence of a client by his lawyer must be conducted not in the media, save in very specific circumstances (see paragraph 138 above), but in the courts of competent jurisdiction, and this involves using any available remedies. It notes that in the present case the referral to the Indictments Division of the Paris Court of Appeal patently showed that the initial intention of the applicant and his colleague was to resolve the matter using the available remedies. It was, in reality, only after that remedy had been used that the problem complained of occurred, as recorded by the investigating judge P. in his official report of 1 August 2000 (see paragraph 32 above). At that stage the Indictments Division was no longer in a position to examine such complaints, precisely because it had withdrawn the case from Judges M. and L.L. The Court further notes that, in any event, four and a half years had already elapsed since the opening of the judicial investigation, which has still not been closed to date. It also observes that the civil parties and their lawyers took an active part in the proceedings and, in particular, that they succeeded, according to the judgment of the Versailles Court of Appeal of 28 May 2009, in having a material witness examined in Belgium in spite of a lack of interest in him on the part of the investigating judges M. and L.L. (see paragraph 16 above). 172. Moreover, the request for an investigation made to the Minister of Justice complaining of these new facts was not a judicial remedy – such as to justify possibly refraining from intervention in the press – but a mere request for an administrative investigation subject to the discretionary decision of the Minister of Justice. The Court notes in this connection that the domestic judges themselves, both at first instance and on appeal, took the view that the letter could not enjoy the immunity afforded to judicial acts, the Criminal Court having found that its content was purely informative (see paragraphs 38 and 46 above). The Court observes that it has not been argued that this request was acted upon and, in addition, it notes that Judges M. and L.L. clearly did not see it as the normal use of a remedy available under domestic law, but as an act justifying the filing of a complaint for false accusation (see paragraph 35 above). 173. Lastly, the Court finds that neither the Principal Public Prosecutor nor the relevant Bar Council or chairman of the Bar found it necessary to bring disciplinary proceedings against the applicant on account of his statements in the press, although such a possibility was open to them (see Mor, cited above, § 60). (iv) Conclusion as to the circumstances of the present case 174. The Court is of the view that the impugned remarks by the applicant did not constitute gravely damaging and essentially unfounded attacks on the action of the courts, but criticisms levelled at Judges M. and L.L. as part of a debate on a matter of public interest concerning the functioning of the justice system, and in the context of a case which had received wide media coverage from the outset. While those remarks could admittedly be regarded as harsh, they nevertheless constituted value judgments with a sufficient “factual basis”. (e) The sanctions imposed 175. As to the sentences imposed, the Court reiterates that, in assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account (see, for example, Sürek, cited above, § 64; Chauvy and Others v. France, no. 64915/01, § 78, ECHR 2004-VI; and Mor, cited above, § 61). In the present case, the Court of Appeal sentenced the applicant to pay a fine of EUR 4,000. This amount corresponds precisely to that fixed by the first-instance court, where the judges had expressly taken into account the applicant’s status as a lawyer to justify their severity and to impose on him “a fine of a sufficiently high amount” (see paragraph 41 above). In addition to ordering the insertion of a notice in the newspaper Le Monde, the court ordered him to pay, jointly with the journalist and the publication director, EUR 7,500 in damages to each of the two judges, together with EUR 4,000 to Judge L.L. in costs. The Court notes, moreover, that the applicant alone was ordered to pay a sum to Judge M. in respect of costs, amounting to EUR 1,000. 176. The Court reiterates that even when the sanction is the lightest possible, such as a guilty verdict with a discharge in respect of the criminal sentence and an award of only a “token euro” in damages (see Mor, cited above, § 61), it nevertheless constitutes a criminal sanction and, in any event, that fact cannot suffice, in itself, to justify the interference with the applicant’s freedom of expression (see Brasilier, cited above, § 43). The Court has emphasised on many occasions that interference with freedom of expression may have a chilling effect on the exercise of that freedom (see, mutatis mutandis, Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 114, ECHR 2004 ‑ XI, and Mor, cited above) – a risk that the relatively moderate nature of a fine would not suffice to negate (see Dupuis and Others v. France, no. 1914/02, § 48, 7 June 2007). It should also be noted that imposing a sanction on a lawyer may have repercussions that are direct (disciplinary proceedings) or indirect (in terms, for example, of their image or the confidence placed in them by the public and their clients). The Court would, moreover, reiterate that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings (see paragraph 127 above). The Court observes, however, that in the present case the applicant’s punishment was not confined to a criminal conviction: the sanction imposed on him was not the “lightest possible”, but was, on the contrary, of some significance, and his status as a lawyer was even relied upon to justify greater severity. 3. Conclusion 177. In view of the foregoing, the Court finds that the judgment against the applicant for complicity in defamation can be regarded as a disproportionate interference with his right to freedom of expression, and was not therefore “necessary in a democratic society” within the meaning of Article 10 of the Convention. 178. Accordingly, there has been a violation of Article 10 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 179. 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 180. The applicant claimed 4,270 euros (EUR) in respect of pecuniary damage, corresponding to the amounts he was ordered to pay on account of the judgment against him, and EUR 20,000 in respect of non-pecuniary damage on account of the violation of Articles 6 and 10 of the Convention. 181. The Government did not comment on those claims before the Grand Chamber. 182. The Court observes that the applicant was ordered to pay a fine of EUR 4,000, together with the sum of EUR 1,000 in respect of Judge M.’s costs and expenses, in addition to an award of EUR 7,500 in damages to each of the judges to be paid jointly with the other two co-defendants, and EUR 4,000 in respect of Judge L.L.’s costs (see paragraph 46 above). It thus takes the view that there is a sufficient causal link between the alleged pecuniary damage and the violation found under Article 6 and, especially, under Article 10 of the Convention. It is thus appropriate to order, under the head of pecuniary damage, the reimbursement of the sums that the applicant was required to pay, within the limit indicated in his claim, namely EUR 4,270, which corresponds to the amount of the fine, plus taxes and court courts, that was paid to the Treasury. 183. The Court further finds that the applicant clearly sustained non-pecuniary damage on account of his criminal conviction and, ruling on an equitable basis, it awards him EUR 15,000 on that basis. B. Costs and expenses 184. The applicant claimed EUR 26,718.80 in respect of costs and expenses for the proceedings before the Court. 185. The Government made no comment on this claim before the Grand Chamber. 186. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see, among many 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 Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, ECHR 2014). 187. In the present case, taking account of the documents in its possession and the above-mentioned criteria, the Grand Chamber finds it reasonable to award EUR 14,400 on that basis to the applicant. C. Default interest 188. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the judgment against the applicant for complicity in defamation could be regarded as a disproportionate interference with his right to freedom of expression. It noted in particular that the impugned remarks by the applicant had not constituted gravely damaging and essentially unfounded attacks on the action of the courts, but criticisms levelled at the investigating judges as part of a debate on a matter of public interest concerning the functioning of the justice system, and in the context of a case which had received wide media coverage from the outset. While those remarks could admittedly be regarded as harsh, they nevertheless constituted value judgments with a sufficient factual basis. The Court also held that there had been a violation of Article 6 § 1 of the Convention in the present case, finding that here were serious doubts as to the impartiality of the Court of Cassation and the applicant’s fears in this connection could be regarded as objectively justified. |
837 | Searches and seizures carried out at a lawyer’s offices or home | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Provisions of the Code of Criminal Procedure relating to search and seizure 27. Articles 139 to 149 of the Code of Criminal Procedure ( Strafprozeßordnung ) concern the search of premises and persons and the seizure of objects. 28. Article 139 § 1 provides in particular that a search may only be carried out if there is a reasonable suspicion that a person suspected of having committed an offence is hiding on the premises concerned, or that there are objects there the possession or examination of which is relevant to a particular criminal investigation. 29. Pursuant to Article 140 §§ 1 and 2 a search should in general only be carried out after the person concerned has been questioned, and only if the person sought has not come forward of his or her own volition or the object or objects sought have not been voluntarily produced and if the reasons leading to the search have not been eliminated. No such questioning is required where there is danger in delay. 30. Article 140 § 3 states that a search may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge. 31. Pursuant to Article 142 §§ 2 and 3 the occupant of the premises subject to the search or, if he is unavailable, a relative of the occupant, shall be present during the search. A report is to be drawn up and to be signed by all those present. 32. Article 143 § 1 of the Code of Criminal Procedure provides that, if objects relevant to the investigation or subject to forfeiture or confiscation are found, they are to be listed and taken to the court for safe keeping or seized. It refers in this respect to Article 98, pursuant to which objects in safe keeping have to be put into an envelope to be sealed by the court, or be labelled so as to avoid any substitution or confusion. 33. Article 145 reads as follows: “1. When searching through documents steps must be taken to ensure that their content does not become known to unauthorised persons. 2. If the owner of the documents does not want to permit their being searched, they shall be sealed and deposited with the court; the Review Chamber must determine immediately whether they are to be examined or returned.” 34. According to the courts ’ case-law, which is endorsed by the opinion of academic writers (see Bertl/Vernier, Grundriss des österreichischen Strafprozessrechts, 7 th edition), the provisions relevant to the search and seizure of paper documents also apply mutatis mutandis to the search and seizure of electronic data. If the owner of disks or hard disks on which data is stored objects to their being searched, the data carriers are to be sealed and the Review Chamber must decide whether they may be examined. B. Provisions relating to the professional secrecy of lawyers 35. Section 9 of the Austrian Lawyers Act ( Rechtsanwaltsordnung ) regulates the professional duties of lawyers including, inter alia, the duty to maintain professional secrecy. 36. Article 152 § 1 of the Code of Criminal Procedure exempts lawyers, notaries and business trustees from the obligation to give evidence as witnesses in respect of information given to them in the exercise of their profession. 37. It is established case-law that documents which contain information subject to professional secrecy may not be seized and used in a criminal investigation. 38. According to an instruction ( Erlaß ) of the Federal Minister of Justice of 21 July 1972, a representative of the competent Bar Association shall be present during the search of a lawyer ’ s office in order to ensure that the search does not encroach on professional secrecy. C. Review by the Independent Administrative Panel 39. By virtue of section 67a ( 1 ) of the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ), Independent Administrative Panels have jurisdiction, inter alia, to examine complaints from persons alleging a violation of their rights resulting from the exercise of direct administrative authority and coercion ( Ausübung unmittelbarer verwaltungsbehördlicher Befehls - und Zwangsgewalt ). 40. Where police officers execute a court warrant their acts are imputable to the court unless they act in clear excess of the powers conferred on them. Only in the latter case are their acts qualified as exercise of direct administrative authority and coercion and subject to review by an Independent Administrative Panel. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 41. The applicants complained of the search and seizure of electronic data. They relied on Article 8 of the Convention which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Applicability of Article 8 42. The Government based their comments on the assumption that the search and seizure at issue interfered with the applicants ’ “private life” and “home”. 43. The Court reiterates that the search of a lawyer ’ s office has been regarded as interfering with “private life” and “correspondence” and, potentially, home, in the wider sense implied by the French text which uses the term “ domicile ” ( see Niemietz v. Germany, 16 December 1992, § § 29 ‑ 33, Series A no. 251 ‑ B, and Tamosius v. the United Kingdom ( dec .), no. 62002/00, ECHR 2002 ‑ VIII; see also Sallinen and Others v. Finland, no. 50882/99, § 71, 27 September 2005, which confirms that the search of a lawyer ’ s business premises also interfered with his right to respect for his “home” ). The search of a company ’ s business premises was also found to interfere with its right to respect for its “home” ( see Société Colas Est and Others v. France, no. 37971/97, §§ 40-42, ECHR 2002-III). 44. In the present case, the applicants do not complain of the search of their business premises, which are the first applicant ’ s law office and the applicant company ’ s seat, nor do they complain of the seizure of documents. They only complain in respect of the search and seizure of electronic data. 45. The Court considers that the search and seizure of electronic data constituted an interference with the applicants ’ right to respect for their “correspondence” within the meaning of Article 8 ( see Niemietz, cited above, § 32, as regards a lawyer ’ s business correspondence, and Sallinen and Others, cited above, § 71, relating to the seizure of a lawyer ’ s computer disks). Having regard to its above-cited case-law extending the notion of “home” to a company ’ s business premises, the Court sees no reason to distinguish between the first applicant, a natural person, and the second applicant, a legal person, as regards the notion of “correspondence”. It does not consider it necessary to examine whether there was also an interference with the applicants ’ “ private life ”. 46. The Court must therefore determine whether the interference with the applicants ’ right to respect for their correspondence satisfied the requirements of paragraph 2 of Article 8. B. Compliance with Article 8 1. The parties ’ submissions 47. The Court observes at the outset that in its admissibility decision of 16 May 2006 it joined the Government ’ s objection as to non-exhaustion to the merits. The Government argued that the applicants had failed to make use of the possibility, provided for in the Code of Criminal Procedure, to request that documents or data be sealed and deposited with the court in order to obtain a court decision on whether or not they may be used for the investigation. The applicants contested this view, arguing that the manner in which the search was carried out had deprived them of the possibility to make effective use of their rights. 48. On the merits, the applicants asserted that the search and seizure of electronic data had been disproportionate. They claimed that the first applicant was not only the manager of the applicant company but also its counsel and the counsel of Novamed. Thus the search had necessarily led to the discovery of correspondence, for instance letters and file notes that the first applicant had made in his capacity as counsel. During the search of the paper documents all such documents had either been removed immediately or sealed and returned to the applicant by the investigating judge as being subject to professional secrecy. In contrast, the electronic data had been seized without observing the attendant procedural guarantees. In this connection the applicants relied on the same arguments as submitted in respect of the issue of exhaustion of domestic remedies. 49. The applicants maintained that the applicant company ’ s rights had also been infringed, since it had had no control over the kind of data that were seized. The search for the word Bicos had necessarily led to data unrelated to the subject defined in the search warrant. The procedural guarantees laid down in the Code of Criminal Procedure had not been complied with, since the applicant company had not been given the possibility to have the data sealed and to obtain a decision by the investigating judge as to which data might be used for the investigation. 50. The Government noted at the outset that the applicants only complained about the search of electronic data and that their submissions essentially related to the first applicant ’ s position as a lawyer and to the alleged lack of safeguards to protect his duty of professional secrecy, while the complaint as regards the applicant company remained unsubstantiated. 51. Referring to the Court ’ s case-law, the Government argued that the search and seizure of electronic data had a legal basis in the Code of Criminal Procedure and served legitimate aims, namely the prevention of crime and the protection of health. 52. As regards the necessity of the interference, the Government asserted that the search and seizure of the data had been proportionate to the legitimate aim pursued. The contested measures had been ordered by a judicial search warrant which had delimited their scope. Moreover, Austrian law contained specific procedural safeguards for the search of a lawyer ’ s office. They had been complied with in that the search had taken place in the presence of the applicant and a representative of the Bar Association, whose role had been to ensure that the search did not encroach on the first applicant ’ s duty of professional secrecy. In accordance with the search warrant, the first applicant ’ s computer systems had been searched with the help of certain key words, that is, the names of the firms involved, Novamed and Bicos, and the names of the suspects in the proceedings in Italy. Since the first applicant was not the second applicant ’ s counsel, their lawyer-client relationship had not been affected. Moreover, the representative of the Bar Association had been informed of the search of the first applicant ’ s computer systems and the search procedure documented in the data- securing report. The fact that the said report had not been drawn up during the search but later the same day was not decisive, since the main aim of recording which data had been seized had been achieved. 2. The Court ’ s assessment ( a ) In accordance with the law 53. The Court reiterates that an interference cannot be regarded as “in accordance with the law” unless, first of all, it has some basis in domestic law. In relation to Article 8 § 2 of the Convention, the term “law” is to be understood in its “substantive” sense, not in its “ formal ” one. In a sphere covered by the written law, the “law” is the enactment in force as the competent courts have interpreted it ( see Société Colas Est and Others, cited above, § 43, with further references, and Sallinen and Others, cited above, § 77). 54. The Austrian Code of Criminal Procedure does not contain specific provisions for the search and seizure of electronic data. However, it contains detailed provisions for the seizure of objects and, in addition, specific rules for the seizure of documents. It is established in the domestic courts ’ case-law that these provisions also apply to the search and seizure of electronic data (see paragraph 34 above). In fact, the applicants do not contest that the measures complained of had a basis in domestic law. ( b ) Legitimate aim 55. The Court observes that the search and seizure was ordered in the context of criminal proceedings against third persons suspected of illegal trade in medicaments. It therefore served a legitimate aim, namely, the prevention of crime. ( c ) Necessary in a democratic society 56. The parties ’ submissions concentrated on the necessity of the interference and, in particular, on the question whether the measures were proportionate to the legitimate aim pursued and whether the procedural safeguards provided for by the Code of Criminal Procedure were adequately complied with. 57. In comparable cases, the Court has examined whether domestic law and practice afforded adequate and effective safeguards against any abuse and arbitrariness (see, for instance, Société Colas Est and Others, cited above, § 48 ). Elements taken into consideration are, in particular, whether the search was based on a warrant issued by a judge and based on reasonable suspicion, whether the scope of the warrant was reasonably limited and – where the search of a lawyer ’ s office was concerned – whether the search was carried out in the presence of an independent observer in order to ensure that materials subject to professional secrecy were not removed ( see Niemietz, cited above, § 37, and Tamosius, cited above). 58. In the present case, the search of the applicants ’ computer systems was based on a warrant issued by the investigating judge in the context of legal assistance for the Italian authorities who were conducting criminal proceedings for illegal trade in medicaments against a number of companies and individuals. It relied on the fact that invoices addressed to Novamed, 100% owned by the applicant company, had been found. In these circumstances, the Court is satisfied that the search warrant was based on reasonable suspicion. 59. The Court also finds that the search warrant limited the documents or data to be looked for in a reasonable manner, by describing them as any business documents revealing contacts with the suspects in the Italian proceedings. The search remained within these limits, since the officers searched for documents or data containing either the word Novamed or Bicos or the names of any of the suspects. 60. Moreover, the Code of Criminal Procedure provides further procedural safeguards as regards the seizure of documents and electronic data. The Court notes the following provisions of the Code : (a) the occupant of the premises being searched shall be present; (b) a report is to be drawn up at the end of the search and items seized are to be listed; (c) if the owner objects to the seizure of documents or data carriers they are to be sealed and put before the judge for a decision as to whether or not they are to be used for the investigation; and (d) in addition, as far as the search of a lawyer ’ s office is concerned, the presence of a representative of the Bar Association is required. 61. The applicants do not claim that the guarantees provided by Austrian law are insufficient but that they were not complied with in the present case as regards the seizure of data. The Court notes that a number of officers carried out the search of the applicants ’ premises. While one group proceeded to the seizure of documents, the second group searched the computer system using certain search criteria and seized data by copying numerous files to disks. 62. The Court observes that the safeguards described above were fully complied with as regards the seizure of documents: whenever the representative of the Bar Association objected to the seizure of a particular document, it was sealed. A few days later the investigating judge decided in the presence of the applicant which files were subject to professional secrecy and returned a number of them to the applicant on this ground. In fact, the applicants do not complain in this respect. 63. What is striking in the present case is that the same safeguards were not observed as regards the electronic data. A number of factors show that the exercise of the applicants ’ rights in this respect was restricted. Firstly, the member of the Bar Association, though temporarily present during the search of the computer facilities, was mainly busy supervising the seizure of documents and could therefore not properly exercise his supervisory function as regards the electronic data. Secondly, the report setting out which search criteria had been applied and which files had been copied and seized was not drawn up at the end of the search but only later the same day. Moreover, the officers apparently left once they had finished their task without informing the first applicant or the representative of the Bar Association of the results of the search. 64. It is true that the first applicant could have requested, in a general manner at the beginning of the search, to have any disks with copied data sealed and submitted to the investigating judge. However, since the Code of Criminal Procedure provides for a report to be drawn up at the end of the search, and requires that the items seized be listed, he could expect that procedure to be followed. Since this was not the case he had no opportunity to exercise his rights effectively. Consequently, the Government ’ s objection of non-exhaustion has to be dismissed. 65. With regard to the first applicant this manner of carrying out the search incurred the risk of impinging on his right to professional secrecy. The Court has attached particular weight to that risk since it may have repercussions on the proper administration of justice ( see Niemietz, cited above, § 37). The domestic authorities and the Government argued that the first applicant was not the applicant company ’ s counsel and that the data seized did not concern their client-lawyer relationship. It is true that the first applicant, contrary to his submissions before the Court, did not claim before the domestic authorities that he was the applicant company ’ s counsel, nor that he was the counsel of Novamed. However, he claimed throughout the proceedings that he acted as counsel for numerous companies whose shares were held by the second applicant. Moreover, the Government did not contest the applicants ’ assertion that the electronic data seized contained by and large the same information as the paper documents seized, some of which were returned to the first applicant by the investigating judge as being subject to professional secrecy. It can therefore be reasonably assumed that the electronic data seized also contained such information. 66. In conclusion, the Court finds that the police officers ’ failure to comply with some of the procedural safeguards designed to prevent any abuse or arbitrariness and to protect the lawyer ’ s duty of professional secrecy rendered the search and seizure of the first applicant ’ s electronic data disproportionate to the legitimate aim pursued. 67. Furthermore, the Court observes that a lawyer ’ s duty of professional secrecy also serves to protect the client. Having regard to its above findings that the first applicant represented companies whose shares were held by the second applicant and that the data seized contained some information subject to professional secrecy, the Court sees no reason to come to a different conclusion as regards the second applicant. 68. Consequently, there has been a violation of Article 8 of the Convention in respect of both applicants. II. 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. Under the head of pecuniary damage, the first applicant claimed 4,000 euros (EUR) per year from the year 2000 for loss of clients. He submitted that he was unable to adduce proof without breaching his duty of professional secrecy. Moreover, he claimed EUR 10,000 as compensation for non-pecuniary damage since his reputation as a lawyer had suffered as a result of the events. 71. The applicant company claimed EUR 20,211.56 in compensation for pecuniary damage. It asserted that, being a holding company, its name had been ruined by the seizure of the data. Consequently, it had had to be newly established under another name and had therefore had to raise EUR 17,500 for the nominal capital of the new company and to pay costs of EUR 2,711.56 for the legal acts involved. It did not submit a claim in respect of non-pecuniary damage. 72. The Government asserted that there was no causal link between the violation in issue and the pecuniary damage alleged by the applicants. 73. With regard to the applicants ’ claims in respect of pecuniary damage, the Court observes that it cannot speculate as to what the effects on the applicants ’ reputation would have been had the search and seizure of electronic data been carried out in compliance with the requirements of Article 8 (see, mutatis mutandis, Société Colas Est and Others, cited above, § 54). Consequently, it makes no award under this head. 74. However, the Court accepts that the first applicant has suffered non-pecuniary damage, such as distress and frustration resulting from the manner in which the search and seizure of data were carried out. Making an assessment on an equitable basis and having regard to the sum awarded in a comparable case (see Sallinen and Others, cited above, § 114) it grants the first applicant EUR 2,500 under the head of non-pecuniary damage. B. Costs and expenses 75. The first applicant claimed a total amount of EUR 15,967.15 for costs and expenses, composed of EUR 9,204.52 in respect of the domestic proceedings and EUR 6,762.63 in respect of the Convention proceedings. These sums include value- added tax ( VAT ). 76. The Government accepted that the costs listed in respect of the domestic proceedings were necessarily incurred. However, they submitted that the amounts claimed were excessive since they were not in accordance with the relevant domestic laws and regulations on the remuneration of lawyers. In particular, only an amount of EUR 1,486.80 – instead of the EUR 4,858 claimed – was due in respect of the proceedings before the Salzburg Independent Administrative Panel. Moreover, the Government argued that the costs claimed in respect of the Convention proceedings were excessive. Only an amount of EUR 2,289.96 was appropriate. 77. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant the costs and expenses of the domestic proceedings which were necessarily incurred in order to prevent or redress the violation and are reasonable as to quantum ( see Société Colas Est and Others, cited above, § 56). 78. The Court notes that it is not contested that the costs claimed by the first applicant were necessarily incurred. However, it considers that the sums claimed are not reasonable as to quantum. Regard being had to the information in its possession and to the sums awarded in comparable cases, the Court considers it reasonable to award the sum of EUR 10,000 covering costs under all heads. This sum includes VAT. C. Default interest 79. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention, finding that the police officers’ failure to comply with certain procedural safeguards aimed at preventing arbitrariness and protecting lawyers’ professional secrecy had made the search and seizure of the first applicant’s electronic data disproportionate to the legitimate aim pursued, namely the prevention of crime. In particular, the representative of the bar association who was present during the search had not been able to properly supervise that part of the search, the report had been drawn up too late, and neither the first applicant nor the bar association representative had been informed of the results of the search. The Court also observed that, although the first applicant was not the second applicant’s counsel, he did act as counsel for numerous companies whose shares it held. Moreover, the electronic data seized contained by and large the same information as the paper documents, some of which the investigating judge had returned to the first applicant as being subject to professional secrecy. It could therefore be reasonably assumed that the electronic data seized also contained such information. |
795 | Right to a fair trial (Article 6 of the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Legal status of persons placed under partial guardianship and their representation before the courts 42. Section 5 of the Persons and Family Act of 9 August 1949 provides that persons who are unable to look after their own interests on account of mental illness or mental deficiency must be entirely deprived of legal capacity and declared legally incapable. Adults with milder forms of such disorders are to be partially incapacitated. Persons who are entirely deprived of legal capacity are placed under full guardianship ( настойничество ), whereas those who are partially incapacitated are placed under partial guardianship ( попечителство – literally “trusteeship”). In accordance with sections 4 and 5 of the Act, persons under partial guardianship may not perform legal transactions without their guardian’s consent. They may, however, carry out ordinary acts forming part of everyday life and have access to the resources obtained in consideration for their work. Accordingly, the guardian of a partially incapacitated person cannot independently perform legal transactions that are binding on that person. This means that contracts signed only by the guardian, without the consent of the person partially lacking legal capacity, are invalid. 43. Under Article 16 § 2 of the Code of Civil Procedure (“the CCP”), persons under full guardianship are represented before the courts by their guardian. Persons under partial guardianship, however, are entitled to take part in court proceedings, but require their guardian’s consent. Accordingly, the guardian of a partially incapacitated person does not perform the role of a legal representative. The guardian cannot act on behalf of the person under partial guardianship, but may express agreement or disagreement with the person’s individual transactions (Сталев, Ж., Българско гражданско процесуално право, София, 2006 г., стр. 171). In particular, a person under partial guardianship may instruct a lawyer provided that the form of authority is signed by the guardian (ibid., стр. 173). B. Procedure for placement under partial guardianship 44. There are two stages to the procedure for placing a person under partial guardianship: the declaration of partial incapacity and the appointment of a guardian. 1. Declaration of partial incapacity by the courts 45. The first stage involves a judicial procedure which at the material time was governed by Articles 275 to 277 of the 1952 CCP, which have been reproduced unchanged in Articles 336 to 340 of the new 2007 CCP. A declaration of partial incapacity may be sought by the person’s spouse or close relatives, by the public prosecutor or by any other interested party. The court reaches its decision after examining the person concerned at a public hearing – or, failing that, after forming a first-hand impression of the person’s condition – and interviewing the person’s close relatives. If the statements thus obtained are insufficient, the court may have recourse to other evidence, such as an expert medical assessment. According to domestic case-law, an assessment must be ordered where the court is unable to conclude from any other information in the file that the request for deprivation of legal capacity is unfounded (Решение на ВС № 1538 от 21.VIII.1961 г. по гр. д. № 5408/61 г.; Решение на ВС № 593 от 4.III.1967 г. по гр. д. № 3218/1966 г.). 2. Appointment of a guardian by the administrative authorities 46. The second stage involves an administrative procedure for the appointment of a guardian, which at the material time was governed by Chapter X (Articles 109 to 128) of the 1985 FC; these provisions have been reproduced, with only minor amendments, in Articles 153 to 174 of the new 2009 FC. The administrative stage is conducted by an authority referred to as “the guardianship authority”, namely the mayor or any other municipal council officer designated by him or her. 47. The guardian should preferably be appointed from among the relatives of the person concerned who are best able to defend his or her interests. C. Review of measures taken by the guardian and possibility of replacement 48. Measures taken by the guardian are subject to review by the guardianship authority. At the authority’s request, the guardian must report on his or her activities. If any irregularities are observed, the authority may request that they be rectified or may order the suspension of the measures in question (see Articles 126 § 2 and 125 of the 1985 FC, and Articles 170 and 171 §§ 2 and 3, of the 2009 FC). It is unclear from domestic law whether persons under partial guardianship may apply to the mayor individually or through another party to suspend measures taken by the guardian. 49. Decisions by the mayor, as the guardianship authority, and any refusal by the mayor to appoint a guardian or to take other steps provided for in the FC are, for their part, amenable to judicial review. They may be challenged by interested parties or the public prosecutor before the district court, which gives a final decision on the merits (Article 115 of the 1985 FC). This procedure allows close relatives to request a change of guardian in the event of a conflict of interests (Решение на ВС № 1249 от 23.XII.1993 г. по гр. д. № 897/93 г.). According to domestic case-law, fully incapacitated persons are not among the “interested parties” entitled to initiate such proceedings (Определение № 5771 от 11.06.2003 г. на ВАС по адм. д. № 9248/2002). There is no domestic case-law showing that a partially incapacitated person is authorised to do so. 50. Furthermore, the guardianship authority may at any time replace a guardian who fails to discharge his or her duties (Article 113 of the 1985 FC). By Article 116 of the 1985 FC, a person cannot be appointed as a guardian where there is a conflict of interests between that person and the person under partial guardianship. Article 123 of the 1985 FC provides that a deputy guardian is to be appointed where the guardian is unable to discharge his or her duties or where there is a conflict of interests. In both cases, the guardianship authority may also appoint an ad hoc representative. D. Procedure for restoration of legal capacity 51. By virtue of Article 277 of the 1952 CCP, this procedure is similar to the partial-guardianship procedure. It is open to anyone entitled to apply for a person to be placed under partial guardianship, and also to the guardianship authority and the guardian. The above-mentioned provision has been reproduced in Article 340 of the 2007 CCP. On 13 February 1980 the Plenary Supreme Court delivered a decision (no. 5/79) aimed at clarifying certain questions concerning the procedure for deprivation of legal capacity. Paragraph 10 of the decision refers to the procedure for restoration of legal capacity and reads as follows: “The rules applicable in the procedure for restoration of legal capacity are the same as those governing the procedure for deprivation of capacity (Articles 277 and 275 §§ 1 and 2 of the CCP). The persons who requested the measure or the close relatives are treated as respondent parties in the procedure. There is nothing to prevent the party that applied for a person to be deprived of legal capacity from requesting the termination of the measure if circumstances have changed. Persons under partial guardianship may request, either individually or with the consent of their guardian, that the measure be lifted. They may also ask the guardianship authority or the guardianship council to bring an action under Article 277 of the CCP in the regional court which deprived them of legal capacity. In such cases, they must show that the application is in their interests by producing a medical certificate. In the context of such an action, they will be treated as the claimant. Where the guardian of a partially incapacitated person, the guardianship authority or the guardianship council (in the case of a fully incapacitated person) refuses to bring an action for restoration of legal capacity, the incapacitated person may ask the public prosecutor to do so (Постановление № 5/79 от 13.II.1980 г., Пленум на ВС).” 52. In addition, the Government cited a case in which proceedings for the review of the legal status of a person entirely deprived of legal capacity had been instituted at the guardian’s request and the person had been released from guardianship (Решение № 1301 от 12.11.2008 г. на ВКС по гр. Д. № 5560/2007 г., V г.о.). E. Validity of contracts signed by representatives of incapacitated persons 53. Section 26(2) of the Obligations and Contracts Act 1950 provides that contracts that are in breach of the law or have been entered into in the absence of consent are deemed null and void. 54. In accordance with section 27 of the same Act, contracts entered into by representatives of persons deprived of legal capacity in breach of the applicable rules are deemed voidable. A ground of incurable nullity may be raised on any occasion, whereas a ground of voidability may be raised only by means of a court action. The right to raise a ground of voidability becomes time-barred after a period of three years from the date of release from partial guardianship if a guardian is not appointed. In other cases, the period in question begins to run from the date on which a guardian is appointed (section 32(2), in conjunction with section 115(1)(e), of the above-mentioned Act; see also Решение на ВС № 668 от 14.III.1963 г. по гр. д. № 250/63 г., I г. о., Решение на Окръжен съд – Стара Загора от 2.2.2010 г. по т. д. № 381/2009 г. на I състав, Решение на Районен съд Стара Загора № 459 от 19.5.2009 г. по гр. д. № 1087/2008). F. Place of residence of legally incapacitated persons 55. By virtue of Articles 120 and 122 § 3 of the 1985 FC, persons deprived of legal capacity are deemed to reside at the home address of their guardian unless “exceptional reasons” require them to live elsewhere. Where the place of residence is changed without the guardian’s consent, the guardian may request the district court to order the person’s return to the official address. By Article 163 §§ 2 and 3 of the 2009 FC, before reaching a decision in such cases, the court is required to interview the person under guardianship. If it finds that there are “exceptional reasons”, it must refuse to order the person’s return and must immediately inform the municipal social assistance department so that protective measures can be taken. 56. The district court’s order may be appealed against to the president of the regional court, although its execution cannot be stayed. G. Placement of legally incapacitated persons in social care homes for adults with mental disorders 57. Under the Social Assistance Act 1998, social assistance is available to people who, for medical and social reasons, are incapable of meeting their basic needs on their own through work, through their own assets or with the help of persons required by law to care for them (section 2 of the Act). Social assistance consists of the provision of various financial benefits, benefits in kind and social services, including placement in specialised institutions. Such benefits are granted on the basis of an individual assessment of the needs of the persons concerned and in accordance with their wishes and personal choices (section 16(2)). 58. By virtue of the implementing regulations for the Social Assistance Act 1998 ( Правилник за прилагане на Закона за социално подпомагане ), three categories of institutions are defined as “specialised institutions” for the provision of social services: (1) children’s homes (homes for children deprived of parental care, homes for children with physical disabilities, homes for children with a mental deficiency); (2) homes for adults with disabilities (homes for adults with a mental deficiency, homes for adults with mental disorders, homes for adults with physical disabilities, homes for adults with sensory disorders, homes for adults with dementia); and (3) old people’s homes (Regulation 36(3)). Social services are provided in specialised institutions where it is no longer possible to receive them in the community (Regulation 36(4)). Under domestic law, placement of a legally incapacitated person in a social care home is not regarded as a form of deprivation of liberty. 59. Similarly, in accordance with Decree no. 4 of 16 March 1999 on the conditions for obtaining social services ( Наредба № 4 за условията и реда за извършване на социални услуги ), adults with mental deficiencies are placed in specialised social care homes if it is impossible to provide them with the necessary medical care in a family environment (Articles 12, point (4), and 27 of the Decree). Article 33 § 1, point (3), of the Decree provides that when a person is placed in a social care home, a medical certificate concerning the person’s state of health must be produced. By Article 37 § 1 of the Decree, a placement agreement for the provision of social services is signed between the specialised institution and the person concerned or his or her legal representative, on the basis of a model approved by the Ministry of Labour and Social Policy. The person may be transferred to another home or may leave the institution in which he or she has been placed: (1) at his or her request or at the request of his or her legal representative, submitted in writing to the director of the institution; (2) if there is a change in the state of his or her mental and/or physical health such that it no longer corresponds to the profile of the home; (3) in the event of failure to pay the monthly social welfare contribution for more than one month; (4) in the event of systematic breaches of the institution’s internal rules; or (5) in the event of a confirmed addiction to narcotic substances. 60. Furthermore, the system governing admission to a psychiatric hospital for compulsory medical treatment is set out in the Health Act 2005, which replaced the Public Health Act 1973. H. Appointment of an ad hoc representative in the event of a conflict of interests 61. Article 16 § 6 of the CCP provides that, in the event of a conflict of interests between a person being represented and the representative, the court is to appoint an ad hoc representative. The Bulgarian courts have applied this provision in certain situations involving a conflict of interests between minors and their legal representative. Thus, the failure to appoint an ad hoc representative has been found to amount to a substantial breach of the rules governing paternity proceedings (Решение на ВС № 297 от 15.04.1987 г. по гр. д. № 168/87 г., II г. о.), disputes between adoptive and biological parents (Решение на ВС № 1381 от 10.05.1982 г. по гр. д. № 954/82 г., II г. о.) or property disputes (Решение № 643 от 27.07.2000 г. на ВКС по гр. д. № 27/2000 г., II г. о.; Определение на ОС – Велико Търново от 5.11.2008 г. по в. ч. гр. д. № 963/2008). III. RELEVANT INTERNATIONAL INSTRUMENTS A. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106) 72. This convention came into force on 3 May 2008. It was signed by Bulgaria on 27 September 2007 but has yet to be ratified. The relevant parts of the Convention provide: Article 12 Equal recognition before the law “1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. 5. Subject to the provisions of this Article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.” Article 14 Liberty and security of person “1. States Parties shall ensure that persons with disabilities, on an equal basis with others: (a) Enjoy the right to liberty and security of person; (b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty. 2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.” B. Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults (adopted on 23 February 1999) 73. The relevant parts of this Recommendation read as follows. Principle 2 – Flexibility in legal response “1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations. ... 4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.” Principle 3 – Maximum preservation of capacity “1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned. 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...” Principle 6 – Proportionality “1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned. 2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention.” Principle 13 – Right to be heard in person “The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.” Principle 14 – Duration, review and appeal “1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. ... 3. There should be adequate rights of appeal.” C. Reports on visits to Bulgaria by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 1. The CPT’s report on its visit from 16 to 22 December 2003, published on 24 June 2004 74. This report outlines the situation of persons placed by the public authorities in social care homes for people with mental disorders or mental deficiency, which are under the authority of the Ministry of Labour and Social Policy. Part II.4 of the report is devoted to the Pastra social care home. 75. The CPT noted that the home’s official capacity was 105; it had 92 registered male residents, of whom 86 were present at the time of the visit. Two residents had absconded and the others were on home leave. Some 90% of the residents were suffering from schizophrenia and the remainder had a mental deficiency. The majority had spent many years in the institution, discharges being quite uncommon. 76. According to the CPT’s findings, the premises of the Pastra social care home were in a deplorable state of repair and hygiene and the home was inadequately heated. 77. In particular, the buildings did not have running water. The residents washed in cold water in the yard and were often unshaven and dirty. The bathroom, to which they had access once a week, was rudimentary and dilapidated. 78. The toilets, likewise located in the yard, consisted of decrepit shelters with holes dug in the ground. They were in an execrable state and access to them was dangerous. Furthermore, basic toiletries were rarely available. 79. The report notes that the provision of food was inadequate. Residents received three meals a day, including 750 g of bread. Milk and eggs were never on offer, and fresh fruit and vegetables were rarely available. No provision was made for special diets. 80. The only form of treatment at the home consisted of the provision of medication. The residents, who were treated as chronic psychiatric patients in need of maintenance therapy, were registered as outpatients with a psychiatrist in Dupnitsa. The psychiatrist visited the home once every two to three months, and also on request. In addition, residents could be taken to the psychiatrist – who held weekly surgeries in the nearby town of Rila – if changes in their mental condition were observed. All residents underwent a psychiatric examination twice a year, which was an occasion for them to have their medication reviewed and, if necessary, adjusted. Nearly all residents received psychiatric medication, which was recorded on a special card and administered by the nurses. 81. Apart from the administration of medication, no therapeutic activities were organised for residents, who led passive, monotonous lives. 82. The CPT concluded that these conditions had created a situation which could be said to amount to inhuman and degrading treatment. It requested the Bulgarian authorities to replace the Pastra social care home as a matter of urgency. In their response of 13 February 2004, the Bulgarian authorities acknowledged that the home was not in conformity with European care standards. They stated that it would be closed as a priority and that the residents would be transferred to other institutions. 83. The CPT further observed, in part II.7 of its report, that in most cases placement of people with mental disabilities in a specialised institution led to a de facto deprivation of liberty. The placement procedure should therefore be accompanied by appropriate safeguards, among them an objective medical, and in particular psychiatric, assessment. It was also essential that these persons should have the right to bring proceedings by which the lawfulness of their placement could be decided speedily by a court. The CPT recommended that such a right be guaranteed in Bulgaria (see paragraph 52 of the report). 2. The CPT’s report on its visit from 10 to 21 September 2006, published on 28 February 2008 84. In this report the CPT again recommended that provision be made for the introduction of judicial review of the lawfulness of placement in a social care home (see paragraphs 176-77 of the report). 85. It also recommended that efforts be made to ensure that the placement of residents in homes for people with mental disorders and/or deficiency conformed fully to the letter and spirit of the law. Contracts for the provision of social services should specify the legal rights of residents, including the possibilities for lodging complaints with an outside authority. Furthermore, residents who were incapable of understanding the contracts should receive appropriate assistance (see paragraph 178 of the report). 86. Lastly, the CPT urged the Bulgarian authorities to take the necessary steps to avoid conflicts of interests arising from the appointment of an employee of a social care home as the guardian of a resident of the same institution (see paragraph 179 of the report). 87. The CPT made a further visit to the Pastra social care home during its periodic visit to Bulgaria in October 2010. IV. COMPARATIVE LAW A. Access to a court for restoration of legal capacity 88. A comparative study of the domestic law of twenty Council of Europe member States indicates that in the vast majority of cases (Croatia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Luxembourg, Monaco, Poland, Portugal, Romania, Slovakia, Sweden, Switzerland and Turkey) the law entitles anyone who has been deprived of legal capacity to apply directly to the courts for discontinuation of the measure. 89. In Ukraine, people who have been partially deprived of legal capacity may themselves apply for the measure to be lifted; this does not apply to those who have been declared fully incapable, who may nevertheless challenge before a court any measures taken by their guardian. 90. Judicial proceedings for the discontinuation of an order depriving a person of legal capacity cannot be instituted directly by the person concerned in Latvia (where an application may be made by the public prosecutor or the guardianship council) or in Ireland. B. Placement of legally incapacitated persons in a specialised institution 91. A comparative-law study of the legislation of twenty States Parties to the Convention shows that there is no uniform approach in Europe to the question of placement of legally incapacitated persons in specialised institutions, particularly as regards the authority competent to order the placement and the guarantees afforded to the person concerned. It may nevertheless be observed that in some countries (Austria, Estonia, Finland, France, Germany, Greece, Poland, Portugal and Turkey) the decision to place a person in a home on a long-term basis against his or her will is taken directly or approved by a judge. 92. Other legal systems (Belgium, Denmark, Hungary, Ireland, Latvia, Luxembourg, Monaco and the United Kingdom) authorise the guardian, close relatives or the administrative authorities to decide on placement in a specialised institution without a judge’s approval being necessary. It also appears that in all the above-mentioned countries, the placement is subject to a number of substantive requirements, relating in particular to the person’s health, the existence of a danger or risk and/or the production of medical certificates. In addition, the obligation to interview or consult the person concerned on the subject of the placement, the setting of a time-limit by law or by the courts for the termination or review of the placement, and the possibility of legal assistance are among the safeguards provided in several national legal systems. 93. In certain countries (Denmark, Estonia, Germany, Greece, Hungary, Ireland, Latvia, Poland, Slovakia, Switzerland and Turkey) the possibility of challenging the initial placement order before a judicial body is available to the person concerned without requiring the guardian’s consent. 94. Lastly, several States (Denmark, Estonia, Finland, Germany, Greece, Ireland, Latvia, Poland, Switzerland and Turkey) directly empower the person concerned to apply periodically for judicial review of the lawfulness of the continued placement. 95. It should also be noted that many countries’ laws on legal capacity or placement in specialised institutions have recently been amended (Austria: 2007; Denmark: 2007; Estonia: 2005; Finland: 1999; France: 2007; Germany: 1992; Greece: 1992; Hungary: 2004; Latvia: 2006; Poland: 2007; Ukraine: 2000; United Kingdom: 2005) or are in the process of being amended (Ireland). These legislative reforms are designed to increase the legal protection of persons lacking legal capacity by affording them either the right of direct access to court for a review of their status, or additional safeguards when they are placed in specialised institutions against their will. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 96. The applicant submitted that his placement in the Pastra social care home was in breach of Article 5 § 1 of the Convention. Article 5 § 1 provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. Preliminary remarks 97. The Grand Chamber observes that the Government maintained before it the objection they raised before the Chamber, alleging failure to exhaust domestic remedies in respect of the complaint under Article 5 § 1. 98. The objection was based on the following arguments. Firstly, the applicant could at any time have applied personally to a court for restoration of his legal capacity, under Article 277 of the Code of Civil Procedure (“the CCP”), and release from guardianship would have allowed him to leave the home of his own accord. Secondly, his close relatives had not availed themselves of the possibility open to some of them, under Articles 113 and 115 of the Family Code (“the FC”), of asking the guardianship authority to replace his guardian. According to the Government, in the event of a refusal the applicants’ relatives could have applied to a court, which would have considered the merits of the request and, if appropriate, appointed a new guardian, who would then have been able to terminate the placement agreement. The Government also submitted in substance that the applicant’s close relatives could have challenged the contract signed between the guardian R.P. and the Pastra social care home. Lastly, they indicated that the applicant himself could have requested the guardianship authority to appoint an ad hoc representative on account of his alleged conflict of interests with his guardian, with a view to requesting to leave the institution and establish his home elsewhere (Article 123 § 1 of the FC). 99. The Grand Chamber observes that in its admissibility decision of 29 June 2010 the Chamber found that this objection raised questions that were closely linked to those arising in relation to the applicant’s complaint under Article 5 § 4 and therefore joined the objection to its examination of the merits under that provision. 100. In addition, finding that the question whether there had been a “deprivation of liberty” within the meaning of Article 5 § 1 in the present case was closely linked to the merits of the complaint under that provision, the Chamber likewise joined that issue to its examination of the merits. The Grand Chamber sees no reason to call into question the Chamber’s findings on these issues. B. Whether the applicant was deprived of his liberty within the meaning of Article 5 § 1 1. The parties’ submissions (a) The applicant 101. The applicant contended that, although under domestic law placement of people with mental disorders in a social care institution was regarded as “voluntary”, his transfer to the Pastra social care home constituted a deprivation of liberty. He maintained that, as in Storck v. Germany (no. 61603/00, ECHR 2005-V), the objective and subjective elements of detention were present in his case. 102. With regard to the nature of the measure, the applicant submitted that living in a social care home in a remote mountain location amounted to physical isolation from society. He could not have chosen to leave on his own initiative since, having no identity papers or money, he would soon have faced the risk of being stopped by the police for a routine check, a widespread practice in Bulgaria. 103. Absences from the social care home were subject to permission. The distance of approximately 420 km between the institution and his home town and the fact that he had no access to his invalidity pension had made it impossible for him to travel to Ruse more than three times. The applicant further submitted that he had been denied permission to travel on many other occasions by the home’s management. He added that, in accordance with a practice with no legal basis, residents who left the premises for longer than the authorised period were treated as fugitives and were searched for by the police. He stated in that connection that on one occasion the police had arrested him in Ruse and that, although they had not taken him back to the home, the fact that the Director had asked for him to be located and transferred back had amounted to a decisive restriction on his right to personal liberty. He stated that he had been arrested and detained by the police pending the arrival of staff from the home to collect him, without being informed of the grounds for depriving him of his liberty. Since he had been transferred back under duress, it was immaterial that those involved had been employees of the home. 104. The applicant further noted that his placement in the home had already lasted more than eight years and that his hopes of leaving one day were futile, as the decision had to be approved by his guardian. 105. As to the consequences of his placement, the applicant highlighted the severity of the regime to which he was subject. His occupational activities, treatment and movements had been subject to thorough and practical supervision by the home’s employees. He had been required to follow a strict daily routine, getting up, going to bed and eating at set times. He had had no free choice as to his clothing, the preparation of his meals, participation in cultural events or the development of relations with other people, including intimate relationships as the home’s residents were all men. He had been allowed to watch television in the morning only. Accordingly, his stay in the home had caused a perceptible deterioration in his well-being and the onset of institutionalisation syndrome, in other words the inability to reintegrate into the community and lead a normal life. 106. With regard to the subjective element, the applicant submitted that his situation differed from that examined in H.M. v. Switzerland (no. 39187/98, ECHR 2002-II), in which the applicant had consented to her placement in a nursing home. He himself had never given such consent. His guardian at the time, Ms R.P. (see paragraph 12 above), had not consulted him on the placement and, moreover, he did not even know her; nor had he been informed of the existence of the placement agreement of 10 December 2002 (see paragraph 14 above), which he had never signed. Those circumstances reflected a widespread practice in Bulgaria whereby once people were deprived of legal capacity, even partially, they were deemed incapable of expressing their wishes. In addition, it was clear from the medical documents that the applicant’s desire to leave the home had been interpreted not as a freely expressed wish, but rather as a symptom of his mental illness. 107. Lastly, in H.M. v. Switzerland (cited above) the authorities had based their decision to place the applicant in a nursing home on a thorough examination showing that the living conditions in her own home had severely deteriorated as a result of her lack of cooperation with a social welfare authority. By contrast, the applicant in the present case had never been offered and had never refused alternative social care at home. (b) The Government 108. In their written observations before the Chamber, the Government accepted that the circumstances of the case amounted to a “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention. However, at the hearing and in the proceedings before the Grand Chamber, they contended that Article 5 was not applicable. They observed in that connection that the applicant had not been compulsorily admitted to a psychiatric institution by the public authorities under the Public Health Act, but had been housed in a social care home at his guardian’s request, on the basis of a civil-law agreement and in accordance with the rules on social assistance. Thus, persons in need of assistance, including those with mental disorders, could request various social and medical services, either directly or through their representatives, under the Social Assistance Act 1998 (see paragraphs 57-60 above). Homes for adults with mental disorders offered a wide range of services of this kind and placement in such institutions could not be seen as a deprivation of liberty. 109. As to the particular circumstances of the case, the Government emphasised that the applicant had never expressly and consciously objected to his placement in the home, and it could not therefore be concluded that the measure had been involuntary. Furthermore, he had been free to leave the home at any time. 110. In addition, the applicant had been encouraged to work in the village restaurant to the best of his abilities and had been granted leave of absence on three occasions. The reason he had twice returned from Ruse before the end of his authorised period of leave (see paragraph 27 above) was his lack of accommodation. The Government further submitted that the applicant had never been brought back to the home by the police. They acknowledged that in September 2006 the Director had been obliged to ask the police to search for him because he had not come back (see paragraph 28 above). However, it was clear from the case of Dodov v. Bulgaria (no. 59548/00, 17 January 2008) that the State had a positive obligation to take care of people housed in social care homes. In the Government’s submission, the steps taken by the Director had formed part of this duty of protection. 111. The Government further observed that the applicant had lacked legal capacity and had not had the benefit of a supportive family environment, accommodation or sufficient resources to lead an independent life. Referring in that connection to the judgments in H.M. v. Switzerland (cited above) and Nielsen v. Denmark (28 November 1988, Series A no. 144), they submitted that the applicant’s placement in the home was simply a protective measure taken in his interests alone and constituted an appropriate response to a social and medical emergency; such a response could not be viewed as involuntary. (c) The third party 112. Interights made the following general observations. It stated that it had carried out a survey of practices regarding placement of people with mental disorders in specialised institutions in central and east European countries. According to the conclusions of the survey, in most cases placement in such institutions could be regarded as amounting to a de facto deprivation of liberty. 113. Social care homes were often located in rural or mountainous areas which were not easily accessible. Where they were situated near urban areas, they were surrounded by high walls or fences and the gates were kept locked. As a rule, residents were able to leave the premises only with the express permission of the director of the home, and for a limited period. In cases of unauthorised leave, the police had the power to search for and return the persons concerned. The same restrictive regime applied to all residents, without any distinction according to legal status – whether they had full, partial or no legal capacity – and in the view of Interights this was a decisive factor. No consideration at all was given to whether the placement was voluntary or involuntary. 114. Regarding the analysis of the subjective aspect of the placement, Interights submitted that the consent of the persons concerned was a matter requiring careful attention. Thorough efforts should be made to ascertain their true wishes, notwithstanding any declaration of legal incapacity that might have been made in their case. Interights contended that in reality, when faced with a choice between a precarious, homeless existence and the relative security offered by a social care home, incapable persons in central and east European countries might opt for the latter solution, simply because no alternative services were offered by the State’s social welfare system. That did not mean, however, that the persons concerned could be said to have freely consented to the placement. 2. The Court’s assessment (a) General principles 115. The Court reiterates that the difference between deprivation of liberty and restrictions on liberty of movement, the latter being governed by Article 2 of Protocol No. 4, is merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Guzzardi v. Italy, 6 November 1980, §§ 92-93, Series A no. 39). In order to determine whether someone has been deprived of his liberty, the starting-point must be his specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question (see Storck, cited above, § 71, and Guzzardi, cited above, § 92). 116. In the context of deprivation of liberty on mental-health grounds, the Court has held that a person could be regarded as having been “detained” even during a period when he was in an open hospital ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital (see Ashingdane v. the United Kingdom, 28 May 1985, § 42, Series A no. 93). 117. Furthermore, in relation to the placement of mentally disordered persons in an institution, the Court has held that the notion of deprivation of liberty does not only comprise the objective element of a person’s confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question (see Storck, cited above, § 74). 118. The Court has found that there was a deprivation of liberty in circumstances such as the following: (a) where the applicant, who had been declared legally incapable and admitted to a psychiatric hospital at his legal representative’s request, had unsuccessfully attempted to leave the hospital (see Shtukaturov v. Russia, no. 44009/05, § 108, ECHR 2008); (b) where the applicant had initially consented to her admission to a clinic but had subsequently attempted to escape (see Storck, cited above, § 76); and (c) where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave (see H.L. v. the United Kingdom, no. 45508/99, §§ 89-94, ECHR 2004-IX). 119. The Court has also held that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 64 ‑ 65, Series A no. 12), especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action (see H.L. v. the United Kingdom, cited above, § 90). 120. In addition, the Court has had occasion to observe that the first sentence of Article 5 § 1 must be construed as laying down a positive obligation on the State to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge (see Storck, cited above, § 102). Thus, having regard to the particular circumstances of the cases before it, the Court has held that the national authorities’ responsibility was engaged as a result of detention in a psychiatric hospital at the request of the applicant’s guardian (see Shtukaturov, cited above) and detention in a private clinic (see Storck, cited above). (b) Application of these principles in the present case 121. The Court observes at the outset that it is unnecessary in the present case to determine whether, in general terms, any placement of a legally incapacitated person in a social care institution constitutes a “deprivation of liberty” within the meaning of Article 5 § 1. In some cases, the placement is initiated by families who are also involved in the guardianship arrangements and is based on civil-law agreements signed with an appropriate social care institution. Accordingly, any restrictions on liberty in such cases are the result of actions by private individuals and the authorities’ role is limited to supervision. The Court is not called upon in the present case to rule on the obligations that may arise under the Convention for the authorities in such situations. 122. It observes that there are special circumstances in the present case. No members of the applicant’s family were involved in his guardianship arrangements, and the duties of guardian were assigned to a State official (Ms R.P.), who negotiated and signed the placement agreement with the Pastra social care home without any contact with the applicant, whom she had in fact never met. The placement agreement was implemented in a State-run institution by social services, which likewise did not interview the applicant (see paragraphs 12-15 above). The applicant was never consulted about his guardian’s choices, even though he could have expressed a valid opinion and his consent was necessary in accordance with the Persons and Family Act 1949 (see paragraph 42 above). That being so, he was not transferred to the Pastra social care home at his request or on the basis of a voluntary private-law agreement on admission to an institution to receive social assistance and protection. The Court considers that the restrictions complained of by the applicant are the result of various steps taken by public authorities and institutions through their officials, from the initial request for his placement in an institution and throughout the implementation of the relevant measure, and not of acts or initiatives by private individuals. Although there is no indication that the applicant’s guardian acted in bad faith, the above considerations set the present case apart from Nielsen (cited above), in which the applicant’s mother committed her son, a minor, to a psychiatric institution in good faith, which prompted the Court to find that the measure in question entailed the exercise of exclusive custodial rights over a child who was not capable of expressing a valid opinion. 123. The applicant’s placement in the social care home can therefore be said to have been attributable to the national authorities. It remains to be determined whether the restrictions resulting from that measure amounted to a “deprivation of liberty” within the meaning of Article 5. 124. With regard to the objective aspect, the Court observes that the applicant was housed in a block which he was able to leave, but emphasises that the question whether the building was locked is not decisive (see Ashingdane, cited above, § 42). While it is true that the applicant was able to go to the nearest village, he needed express permission to do so (see paragraph 25 above). Moreover, the time he spent away from the home and the places where he could go were always subject to controls and restrictions. 125. The Court further notes that between 2002 and 2009 the applicant was granted leave of absence for three short visits (of about ten days) to Ruse (see paragraphs 26-28 above). It cannot speculate as to whether he could have made more frequent visits had he asked to do so. Nevertheless, it observes that such leave of absence was entirely at the discretion of the home’s management, who kept the applicant’s identity papers and administered his finances, including transport costs (see paragraphs 25-26 above). Furthermore, it would appear to the Court that the home’s location in a mountain region far away from Ruse (some 400 km) made any journey difficult and expensive for the applicant in view of his income and his ability to make his own travel arrangements. 126. The Court considers that this system of leave of absence and the fact that the management kept the applicant’s identity papers placed significant restrictions on his personal liberty. 127. Moreover, it is not disputed that when the applicant did not return from leave of absence in 2006, the home’s management asked the Ruse police to search for and return him (see paragraph 28 above). The Court can accept that such steps form part of the responsibilities assumed by the management of a home for people with mental disorders towards its residents. It further notes that the police did not escort the applicant back and that he has not proved that he was arrested pending the arrival of staff from the home. Nevertheless, since his authorised period of leave had expired, the staff returned him to the home without regard for his wishes. 128. Accordingly, although the applicant was able to undertake certain journeys, the factors outlined above lead the Court to consider that, contrary to what the Government maintained, he was under constant supervision and was not free to leave the home without permission whenever he wished. With reference to the Dodov case (cited above), the Government maintained that the restrictions in issue had been necessary in view of the authorities’ positive obligations to protect the applicant’s life and health. The Court notes that, in the above-mentioned case, the applicant’s mother suffered from Alzheimer’s disease and that, as a result, her memory and other mental capacities had progressively deteriorated, to the extent that the nursing home staff had been instructed not to leave her unattended. In the present case, however, the Government have not shown that the applicant’s state of health was such as to put him at immediate risk, or to require the imposition of any special restrictions to protect his life and limb. 129. As regards the duration of the measure, the Court observes that it was not specified and was thus indefinite since the applicant was listed in the municipal registers as having his permanent address at the home, where he still remains (having lived there for more than eight years). This period is sufficiently lengthy for him to have felt the full adverse effects of the restrictions imposed on him. 130. As to the subjective aspect of the measure, it should be noted that, contrary to the requirements of domestic law (see paragraph 42 above), the applicant was not asked to give his opinion on his placement in the home and never explicitly consented to it. Instead, he was taken to Pastra by ambulance and placed in the home without being informed of the reasons for or duration of that measure, which had been taken by his officially assigned guardian. The Court observes in this connection that there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned. However, the Court has already held that the fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehend his situation (see Shtukaturov, cited above, § 108). In the present case, domestic law attached a certain weight to the applicant’s wishes and it appears that he was well aware of his situation. The Court notes that, at least from 2004, the applicant explicitly expressed his desire to leave the Pastra social care home, both to psychiatrists and through his applications to the authorities to have his legal capacity restored and to be released from guardianship (see paragraphs 37-41 above). 131. These factors set the present case apart from H.M. v. Switzerland (cited above), in which the Court found that there had been no deprivation of liberty as the applicant had been placed in a nursing home purely in her own interests and, after her arrival there, had agreed to stay. In that connection the Government have not shown that in the present case, on arrival at the Pastra social care home or at any later date, the applicant agreed to stay there. That being so, the Court is not convinced that the applicant consented to the placement or accepted it tacitly at a later stage and throughout his stay. 132. Having regard to the particular circumstances of the present case, especially the involvement of the authorities in the decision to place the applicant in the home and its implementation, the rules on leave of absence, the duration of the placement and the applicant’s lack of consent, the Court concludes that the situation under examination amounts to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. Accordingly, that provision is applicable. C. Whether the applicant’s placement in the Pastra social care home was compatible with Article 5 § 1 1. The parties’ submissions (a) The applicant 133. The applicant submitted that, since he had not consented to his placement in the Pastra social care home and had not signed the agreement drawn up between his guardian and the home, the agreement was in breach of the Persons and Family Act. He added that he had not been informed of the agreement’s existence at the time of his placement and that he had remained unaware of it for a long time afterwards. Nor had he had any opportunity to challenge this step taken by his guardian. Although the guardian had been required by Article 126 of the FC to report on her activities to the guardianship authority (the mayor), the latter was not empowered to take any action against her. Furthermore, no report had ever been drawn up in respect of the applicant, and his guardians had never been called to account for that shortcoming. 134. The applicant further argued that his placement in a home for people with mental disorders did not fall within any of the grounds on which deprivation of liberty could be justified for the purposes of Article 5. The measure in question had not been justified by the need to ensure public safety or by the inability of the person concerned to cope outside the institution. In support of that contention, the applicant argued that the Director of the home had deemed him capable of integrating into the community and that attempts had been made to bring him closer to his family, albeit to no avail. Accordingly, the authorities had based their decision to place him in the home on the simple fact that his family were not prepared to take care of him and he needed social assistance. They had not examined whether the necessary assistance could be provided through alternative measures that were less restrictive of his personal liberty. Such measures were, moreover, quite conceivable since Bulgarian legislation made provision for a wide range of social services, such as personal assistance, social rehabilitation centres and special allowances and pensions. The authorities had thus failed to strike a fair balance between the applicant’s social needs and his right to liberty. It would be arbitrary, and contrary to the purpose of Article 5, for detention to be based on purely social considerations. 135. Should the Court take the view that the placement fell within the scope of Article 5 § 1 (e), by which persons of unsound mind could be deprived of their liberty, the applicant submitted that the national authorities had not satisfied the requirements of that provision. In the absence of a recent psychiatric assessment, it was clear that his placement in the home had not pursued the aim of providing him with medical treatment and had been based solely on medical documents produced in the context of the proceedings for his legal incapacitation. The documents had been issued approximately a year and a half beforehand and had not strictly concerned his placement in an institution for people with mental disorders. Relying on Varbanov v. Bulgaria (no. 31365/96, § 47, ECHR 2000-X), the applicant stated that he had been placed in the Pastra social care home without having undergone any assessment of his mental health at that time. (b) The Government 136. The Government submitted that the applicant’s placement in the home complied with domestic law as the guardian had signed an agreement whereby the applicant was to receive social services in his own interests. She had therefore acted in accordance with her responsibilities and had discharged her duty to protect the person under partial guardianship. 137. Bearing in mind that the sole purpose of the placement had been to provide the applicant with social services under the Social Assistance Act and not to administer compulsory medical treatment, the Government submitted that this measure was not governed by Article 5 § 1 (e) of the Convention. In that connection, the authorities had taken into account his financial and family situation, that is to say, his lack of resources and the absence of close relatives able to assist him on a day-to-day basis. 138. The Government noted at the same time that the applicant could in any event be regarded as a “person of unsound mind” within the meaning of Article 5 § 1 (e). The medical assessment carried out during the proceedings for his legal incapacitation in 2000 showed clearly that he was suffering from mental disorders and that it was therefore legitimate for the authorities to place him in an institution for people with similar problems. Lastly, relying on the Ashingdane judgment (cited above, § 44), the Government submitted that there was an adequate link between the reason given for the placement, namely the applicant’s state of health, and the institution in which he had been placed. Accordingly, they contended that the measure in issue had not been in breach of Article 5 § 1 (e). (c) The third party 139. On the basis of the study referred to in paragraphs 112 to 114 above, Interights submitted that in central and east European countries, the placement of mentally disordered persons in a social care home was viewed solely in terms of social protection and was governed by contractual law. Since such placements were not regarded as a form of deprivation of liberty under domestic law, the procedural safeguards available in relation to involuntary psychiatric confinement were not applicable. 140. Interights contended that situations of this nature were comparable to that examined in H.L. v. the United Kingdom (cited above), in which criticism had been levelled at the system prior to 2007 in the United Kingdom, whereby the common-law doctrine of necessity had permitted the “informal” detention of compliant incapacitated persons with mental disorders. The Court had held that the lack of any fixed procedural rules on the admission and detention of such persons was striking. In its view, the contrast between this dearth of regulation and the extensive network of safeguards applicable to formal psychiatric committals covered by mental-health legislation was significant. In the absence of a formalised admission procedure, indicating who could propose admission, for what reasons and on what basis, and given the lack of indication as to the length of the detention or the nature of treatment or care, the hospital’s health-care professionals had assumed full control of the liberty and treatment of a vulnerable incapacitated person solely on the basis of their own clinical assessments completed as and when they saw fit. While not doubting that those professionals had acted in good faith and in the applicant’s best interests, the Court had observed that the very purpose of procedural safeguards was to protect individuals against any misjudgments and professional lapses (ibid., §§ 120-21). 141. Interights urged the Court to remain consistent with that approach and to find that in the present case the informal nature of admission to and continued detention in a social care home was at odds with the guarantees against arbitrariness under Article 5. The courts had not been involved at any stage of the proceedings and no other independent body had been assigned the task of monitoring the institutions in question. The lack of regulation coupled with the vulnerability of mentally disordered persons facilitated abuses of fundamental rights in a context of extremely limited supervision. 142. The third party further submitted that, in most cases of this kind, placements were automatic as there were few possibilities of alternative social assistance. It contended that the authorities should be under a practical obligation to provide for appropriate measures that were less restrictive of personal liberty but were nonetheless capable of ensuring medical care and social services for mentally disordered persons. This would be a means of applying the principle that the rights guaranteed by the Convention should not be theoretical or illusory but practical and effective. 2. The Court’s assessment (a) General principles 143. The Court reiterates that in order to comply with Article 5 § 1, the detention in issue must first of all be “lawful”, including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. It requires in addition, however, that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see Herczegfalvy v. Austria, 24 September 1992, § 63, Series A no. 244). Furthermore, the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the circumstances (see Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III). 144. In addition, sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds of deprivation of liberty; such a measure will not be lawful unless it falls within one of those grounds (ibid., § 49; see also, in particular, Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008, and Jendrowiak v. Germany, no. 30060/04, § 31, 14 April 2011). 145. As regards the deprivation of liberty of mentally disordered persons, an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; Shtukaturov, cited above, § 114; and Varbanov, cited above, § 45). 146. As to the second of the above conditions, the detention of a mentally disordered person may be necessary not only where the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons (see Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003 ‑ IV). 147. The Court further reiterates that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental-health patient will be “lawful” for the purposes of Article 5 § 1 (e) only if effected in a hospital, clinic or other appropriate institution authorised for that purpose (see Ashingdane, cited above, § 44, and Pankiewicz v. Poland, no. 34151/04, §§ 42-45, 12 February 2008). However, subject to the foregoing, Article 5 § 1 (e) is not in principle concerned with suitable treatment or conditions (see Ashingdane, cited above, § 44, and Hutchison Reid, cited above, § 49). (b) Application of these principles in the present case 148. In examining whether the applicant’s placement in the Pastra social care home was lawful for the purposes of Article 5 § 1, the Court must ascertain whether the measure in question complied with domestic law, whether it fell within the scope of one of the exceptions provided for in sub-paragraphs (a) to (f) of Article 5 § 1 to the rule of personal liberty, and, lastly, whether it was justified on the basis of one of those exceptions. 149. On the basis of the relevant domestic instruments (see paragraphs 57-59 above), the Court notes that Bulgarian law envisages placement in a social care institution as a protective measure taken at the request of the person concerned and not a coercive one ordered on one of the grounds listed in sub-paragraphs (a) to (f) of Article 5 § 1. However, in the particular circumstances of the instant case, the measure in question entailed significant restrictions on personal freedom giving rise to a deprivation of liberty with no regard for the applicant’s will or wishes (see paragraphs 121-32 above). 150. As to whether a procedure prescribed by law was followed, the Court notes firstly that under domestic law the guardian of a person partially lacking legal capacity is not empowered to take legal steps on that person’s behalf. Any contracts drawn up in such cases are valid only when signed together by the guardian and the person under partial guardianship (see paragraph 42 above). The Court therefore concludes that the decision by the applicant’s guardian R.P. to place him in a social care home for people with mental disorders without having obtained his prior consent was invalid under Bulgarian law. This conclusion is in itself sufficient for the Court to establish that the applicant’s deprivation of liberty was contrary to Article 5. 151. In any event, the Court considers that that measure was not lawful within the meaning of Article 5 § 1 of the Convention since it was not justified on the basis of any of sub-paragraphs (a) to (f). 152. The applicant accepted that the authorities had acted mainly on the basis of the arrangements governing social assistance (see paragraph 134 above). However, he argued that the restrictions imposed amounted to a deprivation of liberty which had not been warranted by any of the exceptions provided for in sub-paragraphs (a) to (f) of Article 5 § 1 to the rule of personal liberty. The Government contended that the applicant’s placement in the home had been intended solely to protect his interest in receiving social care (see paragraphs 136-37 above). However, they stated that should the Court decide that Article 5 § 1 was applicable, the measure in question should be held to comply with sub-paragraph (e) in view of the applicant’s mental disorder (see paragraph 138 above). 153. The Court notes that the applicant was eligible for social assistance as he had no accommodation and was unable to work as a result of his illness. It takes the view that, in certain circumstances, the welfare of a person with mental disorders might be a further factor to take into account, in addition to medical evidence, in assessing whether it is necessary to place the person in an institution. However, the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty. The Court considers that any protective measure should reflect as far as possible the wishes of persons capable of expressing their will. Failure to seek their opinion could give rise to situations of abuse and hamper the exercise of the rights of vulnerable persons. Therefore, any measure taken without prior consultation of the interested person will as a rule require careful scrutiny. 154. The Court is prepared to accept that the applicant’s placement in the home was the direct consequence of the state of his mental health, the declaration of his partial incapacity and his placement under partial guardianship. Some six days after being appointed as the applicant’s guardian, Ms R.P., without knowing him or meeting him, decided on the strength of the file to ask social services to place him in a home for people with mental disorders. Social services, for their part, likewise referred to the applicant’s mental health in finding that the request should be granted. It seems clear to the Court that if the applicant had not been deprived of legal capacity on account of his mental disorder, he would not have been deprived of his liberty. Therefore, the present case should be examined under sub-paragraph (e) of Article 5 § 1. 155. It remains to be determined whether the applicant’s placement in the home satisfied the requirements laid down in the Court’s case-law concerning the detention of mentally disordered persons (see the principles outlined in paragraph 145 above). In this connection, the Court reiterates that in deciding whether an individual should be detained as a “person of unsound mind”, the national authorities are to be recognised as having a certain discretion since it is in the first place for them to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Winterwerp, cited above, § 40, and Luberti v. Italy, 23 February 1984, § 27, Series A no. 75). 156. In the instant case it is true that the expert medical report produced in the course of the proceedings for the applicant’s legal incapacitation referred to the disorders from which he was suffering. However, the relevant examination took place before November 2000, whereas the applicant was placed in the Pastra social care home on 10 December 2002 (see paragraphs 10 and 14 above). More than two years thus elapsed between the expert psychiatric assessment relied on by the authorities and the applicant’s placement in the home, during which time his guardian did not check whether there had been any change in his condition and did not meet or consult him. Unlike the Government (see paragraph 138 above), the Court considers that this period is excessive and that a medical opinion issued in 2000 cannot be regarded as a reliable reflection of the state of the applicant’s mental health at the time of his placement. It should also be noted that the national authorities were not under any legal obligation to order a psychiatric report at the time of the placement. The Government explained in that connection that the applicable provisions were those of the Social Assistance Act and not those of the Health Act (see paragraphs 57-60 and 137 above). Nevertheless, in the Court’s view, the lack of a recent medical assessment would be sufficient to conclude that the applicant’s placement in the home was not lawful for the purposes of Article 5 § 1 (e). 157. As a subsidiary consideration, the Court observes that the other requirements of Article 5 § 1 (e) were not satisfied in the present case either. As regards the need to justify the placement by the severity of the disorder, it notes that the purpose of the 2000 medical report was not to examine whether the applicant’s state of health required his placement in a home for people with mental disorders, but solely to determine the issue of his legal protection. While it is true that Article 5 § 1 (e) authorises the confinement of a person suffering from a mental disorder even where no medical treatment is necessarily envisaged (see Hutchison Reid, cited above, § 52), such a measure must be properly justified by the seriousness of the person’s condition in the interests of ensuring his or her own protection or that of others. In the present case, however, it has not been established that the applicant posed a danger to himself or to others, for example because of his psychiatric condition; the simple assertion by certain witnesses that he became aggressive when he drank (see paragraph 10 above) cannot suffice for this purpose. Nor have the authorities reported any acts of violence on the applicant’s part during his time in the Pastra social care home. 158. The Court also notes deficiencies in the assessment of whether the disorders warranting the applicant’s confinement still persisted. Although he was under the supervision of a psychiatrist (see paragraph 31 above), the aim of such supervision was not to provide an assessment at regular intervals of whether he still needed to be kept in the Pastra social care home for the purposes of Article 5 § 1 (e). Indeed, no provision was made for such an assessment under the relevant legislation. 159. Having regard to the foregoing, the Court observes that the applicant’s placement in the home was not ordered “in accordance with a procedure prescribed by law” and that his deprivation of liberty was not justified by sub-paragraph (e) of Article 5 § 1. Furthermore, the Government have not indicated any of the other grounds listed in sub-paragraphs (a) to (f) which might have justified the deprivation of liberty in issue in the present case. 160. There has therefore been a violation of Article 5 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 161. The applicant complained that he had been unable to have the lawfulness of his placement in the Pastra social care home reviewed by a court. He relied on Article 5 § 4 of the Convention, which provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. The parties’ submissions 1. The applicant 162. The applicant submitted that domestic law did not provide for any specific remedies in respect of his situation, such as a periodic judicial review of the lawfulness of his placement in a home for people with mental disorders. He added that, since he was deemed incapable of taking legal action on his own, domestic law did not afford him the possibility of applying to a court for permission to leave the Pastra social care home. He stated that he had likewise been unable to seek to have the placement agreement terminated, in view of the conflict of interests with his guardian, who at the same time was the Director of the home. 163. The applicant further noted that he had not been allowed to apply to the courts to initiate the procedure provided for in Article 277 of the CCP (see paragraph 51 above) and that, moreover, such action would not have led to a review of the lawfulness of his deprivation of liberty but solely to a review of the conditions justifying partial guardianship in his case. 164. He further submitted that the procedure provided for in Articles 113 and 115 of the FC (see paragraphs 49-50 above) in theory afforded his close relatives the right to ask the mayor to replace the guardian or to compel the mayor to terminate the placement agreement. However, this had been an indirect remedy not accessible to him, since his half-sister and his father’s second wife had not been willing to initiate such a procedure. 2. The Government 165. The Government submitted that, since the purpose of the applicant’s placement in the home had been to provide social services, he could at any time have asked for the placement agreement to be terminated without the courts needing to be involved. In their submission, in so far as the applicant alleged a conflict of interests with his guardian, he could have relied on Article 123 § 1 of the FC (see paragraph 50 above) and requested the guardianship authority to appoint an ad hoc representative, who could then have consented to a change of permanent residence. 166. The Government further contended that the applicant’s close relatives had not availed themselves of the possibility open to some of them under Articles 113 and 115 of the FC of requesting the guardianship authority to replace his guardian or of challenging steps taken by the latter. They added that in the event of a refusal, his relatives could have appealed to a court, which would have considered the merits of the case and, if appropriate, appointed a new guardian, who could then have terminated the placement agreement. This, in the Government’s submission, would have enabled them to challenge in substance the agreement signed between Ms R.P. and the Pastra social care home. 167. Lastly, the Government submitted that an action for restoration of legal capacity (under Article 277 of the CCP – see paragraph 51 above) constituted a remedy for the purposes of Article 5 § 4 since, if a sufficient improvement in the applicant’s health had been observed and he had been released from guardianship, he would have been free to leave the home. B. The Court’s assessment 1. General principles 168. The Court reiterates that Article 5 § 4 entitles detained persons to institute proceedings for a review of compliance with the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that a detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 (see E. v. Norway, 29 August 1990, § 50, Series A no. 181-A). The reviewing “court” must not have merely advisory functions but must have the competence to “decide” the “lawfulness” of the detention and to order release if the detention is unlawful (see Ireland v. the United Kingdom, 18 January 1978, § 200, Series A no. 25; Weeks v. the United Kingdom, 2 March 1987, § 61, Series A no. 114; Chahal v. the United Kingdom, 15 November 1996, § 130, Reports of Judgments and Decisions 1996 ‑ V; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009). 169. The forms of judicial review satisfying the requirements of Article 5 § 4 may vary from one domain to another, and will depend on the type of deprivation of liberty in issue. It is not the Court’s task to inquire into what would be the most appropriate system in the sphere under examination (see Shtukaturov, cited above, § 123). 170. Nevertheless, Article 5 § 4 guarantees a remedy that must be accessible to the person concerned and must afford the possibility of reviewing compliance with the conditions to be satisfied if the detention of a person of unsound mind is to be regarded as “lawful” for the purposes of Article 5 § 1 (e) (see Ashingdane, cited above, § 52). The Convention requirement for an act of deprivation of liberty to be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention to provide safeguards against arbitrariness. What is at stake is both the protection of the physical liberty of individuals and their personal security (see Varbanov, cited above, § 58). In the case of detention on the ground of mental illness, special procedural safeguards may be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (see, among other authorities, Winterwerp, cited above, § 60). 171. Among the principles emerging from the Court’s case-law under Article 5 § 4 concerning “persons of unsound mind” are the following: (a) a person detained for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention; (b) Article 5 § 4 requires the procedure followed to have a judicial character and to afford the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which they take place; (c) the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237-A). 2. Application of these principles in the present case 172. The Court observes that the Government have not indicated any domestic remedy capable of affording the applicant the direct opportunity to challenge the lawfulness of his placement in the Pastra social care home and the continued implementation of that measure. It also notes that the Bulgarian courts were not involved at any time or in any way in the placement and that the domestic legislation does not provide for automatic periodic judicial review of placement in a home for people with mental disorders. Furthermore, since the applicant’s placement in the home is not recognised as a deprivation of liberty in Bulgarian law (see paragraph 58 above), there is no provision for any domestic legal remedies by which to challenge its lawfulness in terms of a deprivation of liberty. In addition, the Court notes that, according to the domestic courts’ practice, the validity of the placement agreement could have been challenged on the ground of lack of consent only on the guardian’s initiative (see paragraph 54 above). 173. In so far as the Government referred to the procedure for restoration of legal capacity under Article 277 of the CCP (see paragraph 167 above), the Court notes that the purpose of this procedure would not have been to examine the lawfulness of the applicant’s placement per se, but solely to review his legal status (see paragraphs 233-46 below). The Government also referred to the procedures for reviewing steps taken by the guardian (see paragraphs 165-66 above). The Court considers it necessary to determine whether such remedies could have given rise to a judicial review of the lawfulness of the placement as required by Article 5 § 4. 174. In this connection, it notes that the 1985 FC entitled close relatives of a person under partial guardianship to challenge decisions by the guardianship authority, which in turn was required to review steps taken by the guardian – including the placement agreement – and to replace the latter in the event of failure to discharge his or her duties (see paragraphs 48-50 above). However, the Court notes that those remedies were not directly accessible to the applicant. Moreover, none of the persons theoretically entitled to make use of them displayed any intention of acting in Mr Stanev’s interests, and he himself was unable to act on his own initiative without their approval. 175. It is uncertain whether the applicant could have requested the mayor to demand explanations from the guardian or to suspend the implementation of the placement agreement on the ground that it was invalid. In any event, it appears that since he had been partially deprived of legal capacity, the law did not entitle him to apply of his own motion to the courts to challenge steps taken by the mayor (see paragraph 49 above); this was not disputed by the Government. 176. The same conclusion applies as regards the possibility for the applicant to ask the mayor to replace his guardian temporarily with an ad hoc representative on the basis of an alleged conflict of interests and then to apply for the termination of the placement agreement. The Court observes in this connection that the mayor has discretion to determine whether there is a conflict of interests (see paragraph 50 above). Lastly, it does not appear that the applicant could have applied of his own motion to the courts for a review on the merits in the event of the mayor’s refusal to take such action. 177. The Court therefore concludes that the remedies referred to by the Government were either inaccessible to the applicant or were not judicial in nature. Furthermore, none of them can give rise to a direct review of the lawfulness of the applicant’s placement in the Pastra social care home in terms of domestic law and the Convention. 178. Having regard to those considerations, the Court dismisses the Government’s objection of failure to exhaust domestic remedies (see paragraphs 97-99 above) and finds that there has been a violation of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 179. The applicant submitted that he had not been entitled to compensation for the alleged violations of his rights under Article 5 §§ 1 and 4 of the Convention. He relied on Article 5 § 5, which provides: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. The parties’ submissions 180. The applicant submitted that the circumstances in which unlawful detention could give rise to compensation were exhaustively listed in the State Responsibility for Damage Act 1988 (see paragraphs 62-67 above) and that his own situation was not covered by any of them. He further complained that there were no legal remedies by which compensation could be claimed for a violation of Article 5 § 4. 181. The Government maintained that the compensation procedure under the 1988 Act could have been initiated if the applicant’s placement in the home had been found to have no legal basis. Since the placement had been found to be consistent with domestic law and with his own interests, he had not been able to initiate the procedure in question. B. The Court’s assessment 182. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185-A, and Houtman and Meeus v. Belgium, no. 22945/07, § 43, 17 March 2009). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty (see Ciulla v. Italy, 22 February 1989, § 44, Series A no. 148; Sakık and Others v. Turkey, 26 November 1997, § 60, Reports 1997-VII; and N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002-X). 183. Turning to the present case, the Court observes that, regard being had to its finding of a violation of paragraphs 1 and 4 of Article 5, paragraph 5 is applicable. It must therefore ascertain whether, prior to the present judgment, the applicant had an enforceable right at domestic level to compensation for damage, or whether he will have such a right following the adoption of this judgment. 184. The Court reiterates in this connection that in order to find a violation of Article 5 § 5, it has to establish that the finding of a violation of one of the other paragraphs of Article 5 could not give rise, either before or after the Court’s judgment, to an enforceable claim for compensation before the domestic courts (see Brogan and Others v. the United Kingdom, 29 November 1988, §§ 66-67, Series A no. 145-B). 185. Having regard to the case-law cited above, the Court considers that it must first be determined whether the violation of Article 5 §§ 1 and 4 found in the present case could have given rise, before the delivery of this judgment, to an entitlement to compensation before the domestic courts. 186. As regards the violation of Article 5 § 1, the Court observes that section 2(1) of the State Responsibility for Damage Act 1988 provides for compensation for damage resulting from a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis (see paragraph 62 above). However, that was not the case in this instance. It appears from the case file that the Bulgarian judicial authorities have not at any stage found the measure to have been unlawful or otherwise in breach of Article 5 of the Convention. Moreover, the Government’s line of argument has been that the applicant’s placement in the home was in accordance with domestic law. The Court therefore concludes that the applicant was unable to claim any compensation under the above-mentioned provision in the absence of an acknowledgment by the national authorities that the placement was unlawful. 187. As to the possibility under section 1 of the same Act of claiming compensation for damage resulting from unlawful acts by the authorities (see paragraph 63 above), the Court observes that the Government have not produced any domestic decisions indicating that that provision is applicable to cases involving the placement of people with mental disorders in social care homes on the basis of civil-law agreements. 188. Furthermore, since no judicial remedy by which to review the lawfulness of the placement was available under Bulgarian law, the applicant could not have invoked State liability as a basis for receiving compensation for the violation of Article 5 § 4. 189. The question then arises whether the judgment in the present case, in which violations of paragraphs 1 and 4 of Article 5 have been found, will entitle the applicant to claim compensation under Bulgarian law. The Court observes that it does not appear from the relevant legislation that any such remedy exists; nor, indeed, have the Government submitted any arguments to prove the contrary. 190. It has therefore not been shown the applicant was able to avail himself prior to the Court’s judgment in the present case, or will be able to do so after its delivery, of a right to compensation for the violation of Article 5 §§ 1 and 4. 191. There has therefore been a violation of Article 5 § 5. IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13 192. The applicant complained that the living conditions in the Pastra social care home were poor and that no effective remedy was available under Bulgarian law in respect of that complaint. He relied on Article 3 of the Convention taken alone and in conjunction with Article 13. These provisions are worded as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Preliminary objection of failure to exhaust domestic remedies 193. In their memorial before the Grand Chamber, the Government for the first time raised an objection of failure to exhaust domestic remedies in respect of the complaint under Article 3 of the Convention. They submitted that the applicant could have obtained compensation for the living conditions in the home by bringing an action under the State Responsibility for Damage Act 1988. 194. The Court reiterates that, in accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see N.C. v. Italy, cited above, § 44). Where an objection of failure to exhaust domestic remedies is raised out of time for the purposes of Rule 55, an estoppel arises and the objection must accordingly be dismissed (see Velikova v. Bulgaria, no. 41488/98, § 57, ECHR 2000-VI, and Tanrıbilir v. Turkey, no. 21422/93, § 59, 16 November 2000). 195. In the present case the Government have not cited any circumstances justifying their failure to raise the objection in question at the time of the Chamber’s examination of the admissibility of the case. 196. That being so, the Court observes that the Government are estopped from raising this objection, which must accordingly be dismissed. B. Merits of the complaint under Article 3 of the Convention 1. The parties’ submissions 197. The applicant submitted that the poor living conditions in the Pastra social care home, in particular the inadequate food, the deplorable sanitary conditions, the lack of heating, the enforced medical treatment, the overcrowded bedrooms and the absence of therapeutic and cultural activities, amounted to treatment prohibited by Article 3. 198. He observed that the Government had already acknowledged in 2004 that such living conditions did not comply with the relevant European standards and had undertaken to make improvements (see paragraph 82 above). However, the conditions had remained unchanged, at least until late 2009. 199. In their observations before the Chamber, the Government acknowledged the deficiencies in the living conditions at the home. They explained that the inadequate financial resources set aside for institutions of this kind formed the main obstacle to ensuring the requisite minimum standard of living. They also stated that, following an inspection by the Social Assistance Agency, the authorities had resolved to close the Pastra social care home and to take steps to improve living conditions for its residents. In the Government’s submission, since the living conditions were the same for all the home’s residents and there had been no intention to inflict ill-treatment, the applicant had not been subjected to degrading treatment. 200. Before the Grand Chamber the Government stated that renovation work had been carried out in late 2009 in the part of the home where the applicant lived (see paragraph 24 above). 2. The Court’s assessment (a) General principles 201. Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI, and Poltoratskiy v. Ukraine, no. 38812/97, § 130, ECHR 2003-V). 202. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see Kudła, cited above, § 91, and Poltoratskiy, cited above, § 131). 203. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance or driving them to act against their will or conscience (see Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006-IX). In this connection, the question whether such treatment was intended to humiliate or debase the victim is a factor to be taken into account, although the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67, 68 and 74, ECHR 2001-III, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI). 204. The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that deprivation of liberty in itself raises an issue under Article 3 of the Convention. Nevertheless, under that Article the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła, cited above, §§ 92-94). 205. When assessing the conditions of a deprivation of liberty under Article 3 of the Convention, account has to be taken of their cumulative effects and the duration of the measure in question (see Kalashnikov, cited above, §§ 95 and 102; Kehayov v. Bulgaria, no. 41035/98, § 64, 18 January 2005; and Iovchev v. Bulgaria, no. 41211/98, § 127, 2 February 2006). In this connection an important factor to take into account, besides the material conditions, is the detention regime. In assessing whether a restrictive regime may amount to treatment contrary to Article 3 in a given case, regard must be had to the particular conditions, the stringency of the regime, its duration, the objective pursued and its effects on the person concerned (see Kehayov, cited above, § 65). (b) Application of these principles in the present case 206. In the present case the Court has found that the applicant’s placement in the Pastra social care home – a situation for which the domestic authorities must be held responsible – amounts to a deprivation of liberty within the meaning of Article 5 of the Convention (see paragraph 132 above). It follows that Article 3 is applicable to the applicant’s situation, seeing that it prohibits the inhuman and degrading treatment of anyone in the care of the authorities. The Court would emphasise that the prohibition of ill-treatment in Article 3 applies equally to all forms of deprivation of liberty, and in particular makes no distinction according to the purpose of the measure in issue; it is immaterial whether the measure entails detention ordered in the context of criminal proceedings or admission to an institution with the aim of protecting the life or health of the person concerned. 207. The Court notes at the outset that, according to the Government, the building in which the applicant lives was renovated in late 2009, resulting in an improvement in his living conditions (see paragraph 200 above); the applicant did not dispute this. The Court therefore considers that the applicant’s complaint should be taken to refer to the period between 2002 and 2009. The Government have not denied that during that period the applicant’s living conditions corresponded to his description, and have also acknowledged that, for economic reasons, there were certain deficiencies in that regard (see paragraphs 198-99 above). 208. The Court observes that although the applicant shared a room measuring 16 sq. m with four other residents, he enjoyed considerable freedom of movement both inside and outside the home, a fact likely to lessen the adverse effects of a limited sleeping area (see Valašinas v. Lithuania, no. 44558/98, § 103, ECHR 2001-VIII). 209. Nevertheless, other aspects of the applicant’s physical living conditions are a considerable cause for concern. In particular, it appears that the food was insufficient and of poor quality. The building was inadequately heated and in winter the applicant had to sleep in his coat. He was able to have a shower once a week in an unhygienic and dilapidated bathroom. The toilets were in an execrable state and access to them was dangerous, according to the findings by the CPT (see paragraphs 21, 22, 23, 78 and 79 above). In addition, the home did not return clothes to the same people after they were washed (see paragraph 21 above), which was likely to arouse a feeling of inferiority in the residents. 210. The Court cannot overlook the fact that the applicant was exposed to all the above-mentioned conditions for a considerable period of approximately seven years. Nor can it ignore the findings of the CPT, which, after visiting the home, concluded that the living conditions there at the relevant time could be said to amount to inhuman and degrading treatment. Despite being aware of those findings, during the period from 2002 to 2009 the Government did not act on their undertaking to close down the institution (see paragraph 82 above). The Court considers that the lack of financial resources cited by the Government is not a relevant argument to justify keeping the applicant in the living conditions described (see Poltoratskiy, cited above, § 148). 211. It would nevertheless emphasise that there is no suggestion that the national authorities deliberately intended to inflict degrading treatment. However, as noted above (see paragraph 203), the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3. 212. In conclusion, while noting the improvements apparently made to the Pastra social care home since late 2009, the Court considers that, taken as a whole, the living conditions to which the applicant was exposed during a period of approximately seven years amounted to degrading treatment. 213. There has therefore been a violation of Article 3 of the Convention. C. Merits of the complaint under Article 13 taken in conjunction with Article 3 1. The parties’ submissions 214. The applicant submitted that no domestic remedies, including the claim for compensation envisaged in the State Responsibility for Damage Act 1988, had been accessible to him without his guardian’s consent. He pointed out in that connection that he had not had a guardian for a period of more than two years, between the end of Ms R.P.’s designated term on 31 December 2002 (see paragraph 12 above) and the appointment of a new guardian on 2 February 2005 (see paragraph 17 above). Moreover, his new guardian was also the Director of the social care home. There would therefore have been a conflict of interests between the applicant and his guardian in the event of any dispute concerning the living conditions at the home, and the applicant could not have expected the guardian to support his allegations. 215. In the Government’s submission, an action for restoration of legal capacity (see paragraphs 51-52 above) constituted a remedy by which the applicant could have secured a review of his status and, in the event of being released from partial guardianship, he could have left the social care home and ceased to endure the living conditions about which he complained. 216. The Government added that the applicant could have complained directly about the living conditions at the Pastra social care home by bringing an action under section 1 of the State Responsibility for Damage Act 1988 (see paragraphs 62-67 above). 2. The Court’s assessment 217. The Court refers to its settled case-law to the effect that Article 13 guarantees the existence of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see McGlinchey and Others v. the United Kingdom, no. 50390/99, § 62, ECHR 2003 ‑ V). 218. Where, as in the present case, the Court has found a breach of Article 3, compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies (ibid., § 63; and Iovchev, cited above, § 143). 219. In the instant case the Court observes that section 1(1) of the State Responsibility for Damage Act 1988 has indeed been interpreted by the domestic courts as being applicable to damage suffered by prisoners as a result of poor detention conditions (see paragraphs 63-64 above). However, according to the Government’s submissions, the applicant’s placement in the Pastra social care home is not regarded as detention under domestic law (see paragraphs 108-11 above). Therefore, he would not have been entitled to compensation for the poor living conditions in the home. Moreover, there are no judicial precedents in which this provision has been found to apply to allegations of poor conditions in social care homes (see paragraph 65 above), and the Government have not adduced any arguments to prove the contrary. Having regard to those considerations, the Court concludes that the remedies in question were not effective within the meaning of Article 13. 220. As to the Government’s reference to the procedure for restoration of legal capacity (see paragraph 215 above), the Court considers that, even assuming that as a result of that remedy the applicant had been able to have his legal capacity restored and to leave the home, he would not have been awarded any compensation for his treatment during his placement there. Accordingly, the remedy in question did not afford appropriate redress. 221. There has therefore been a violation of Article 13 of the Convention taken in conjunction with Article 3. V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 222. The applicant alleged that Bulgarian law had not afforded him the possibility of applying to a court for restoration of his legal capacity. He relied on Article 6 § 1 of the Convention, the relevant parts of which read: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Preliminary remarks 223. The Grand Chamber observes that the Government have maintained before it the objection they raised before the Chamber alleging failure to exhaust domestic remedies. The objection was based on Article 277 of the CCP, which, according to the Government, entitled the applicant to apply personally to the courts for restoration of his legal capacity. 224. The Grand Chamber notes that in its admissibility decision of 29 June 2010 the Chamber observed that the applicant disputed the accessibility of the remedy which, according to the Government, would have enabled him to obtain a review of his legal status and that that argument underpinned his complaint under Article 6 § 1. The Chamber thus joined the Government’s objection to its examination of the merits of the complaint in question. The Grand Chamber sees no reason to depart from the Chamber’s conclusion. B. Merits 1. The parties’ submissions 225. The applicant maintained that he had been unable personally to institute proceedings for restoration of his legal capacity under Article 277 of the CCP and that this was borne out by the Supreme Court’s decision no. 5/79 (see paragraph 51 above). In support of that argument, he submitted that the Dupnitsa District Court had declined to examine his application for judicial review of the mayor’s refusal to bring such proceedings, on the ground that the guardian had not countersigned the form of authority (see paragraphs 39-40 above). 226. In addition, although an action for restoration of legal capacity had not been accessible to him, the applicant had attempted to bring such an action through the public prosecutor’s office, the mayor and his guardian (the Director of the home). However, since no application to that end had been lodged with the courts, all his attempts had failed. Accordingly, the applicant had never had the opportunity to have his case heard by a court. 227. The Government submitted that Article 277 of the CCP had offered the applicant direct access to a court at any time to have his legal status reviewed. They pointed out that, contrary to what the applicant alleged, the Supreme Court’s decision no. 5/79 had interpreted Article 277 of the CCP as meaning that persons partially deprived of legal capacity could apply directly to the courts to be released from guardianship. The only condition for making such an application was the production of evidence of an improvement in their condition. However, as was indicated by the medical assessment carried out at the public prosecutor’s request (see paragraph 37 above), which had concluded that the applicant’s condition still persisted and that he was incapable of looking after his own interests, it was clear that the applicant had not had any such evidence available. The Government thus concluded that the applicant had not attempted to apply to the court on his own because he had been unable to substantiate his application. 228. The Government further observed that the courts regularly considered applications for restoration of legal capacity submitted, for example, by a guardian (see paragraph 52 above). 2. The Court’s assessment (a) General principles 229. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see, inter alia, Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005-X, and Salontaji-Drobnjak v. Serbia, no. 36500/05, § 132, 13 October 2009). 230. The right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access “by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals” (see Ashingdane, cited above, § 57). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (ibid.; see also, among many other authorities, Cordova v. Italy, no. 40877/98, § 54, ECHR 2003-I, and the recapitulation of the relevant principles in Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B). 231. Furthermore, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly true for the guarantees enshrined in Article 6, in view of the prominent place held in a democratic society by the right to a fair trial with all the guarantees under that Article (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 45, ECHR 2001-VIII). 232. Lastly, the Court observes that in most of the cases before it involving “persons of unsound mind”, the domestic proceedings have concerned their detention and were thus examined under Article 5 of the Convention. However, it has consistently held that the “procedural” guarantees under Article 5 §§ 1 and 4 of the Convention are broadly similar to those under Article 6 § 1 (see, for instance, Winterwerp, cited above, § 60; Sanchez-Reisse v. Switzerland, 21 October 1986, §§ 51 and 55, Series A no. 107; Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318-B; and Ilijkov v. Bulgaria, no. 33977/96, § 103, 26 July 2001). In the Shtukaturov case (cited above, § 66), in determining whether or not the incapacitation proceedings had been fair, the Court had regard, mutatis mutandis, to its case-law under Article 5 §§ 1 (e) and 4 of the Convention. (b) Application of these principles in the present case 233. The Court observes at the outset that in the present case none of the parties disputed the applicability of Article 6 to proceedings for restoration of legal capacity. The applicant, who has been partially deprived of legal capacity, complained that Bulgarian law did not afford him direct access to a court to apply to have his capacity restored. The Court has had occasion to clarify that proceedings for restoration of legal capacity are directly decisive for the determination of “civil rights and obligations” (see Matter v. Slovakia, no. 31534/96, § 51, 5 July 1999). Article 6 § 1 of the Convention is therefore applicable in the instant case. 234. It remains to be determined whether the applicant’s access to court was restricted and, if so, whether the restriction pursued a legitimate aim and was proportionate to it. 235. The Court notes firstly that the parties differed as to whether a legally incapacitated person had locus standi to apply directly to the Bulgarian courts for restoration of legal capacity; the Government argued that this was the case, whereas the applicant maintained the contrary. 236. The Court accepts the applicant’s argument that, in order to make an application to a Bulgarian court, a person under partial guardianship is required to seek the support of the persons referred to in Article 277 of the 1952 CCP (which has become Article 340 of the 2007 CCP). The list of persons entitled to apply to the courts under Bulgarian law does not explicitly include a person under partial guardianship (see paragraphs 45 and 51 above). 237. With regard to the Supreme Court’s 1980 decision (see paragraph 51 above), the Court observes that, although the fourth sentence of paragraph 10 of the decision, read in isolation, might give the impression that a person under partial guardianship has direct access to a court, the Supreme Court explains further on that, where the guardian of a partially incapacitated person and the guardianship authority refuse to institute proceedings for restoration of legal capacity, the person concerned may request the public prosecutor to do so. In the Court’s view, the need to seek the intervention of the public prosecutor is scarcely reconcilable with direct access to court for persons under partial guardianship in so far as the decision to intervene is left to the prosecutor’s discretion. It follows that the Supreme Court’s 1980 decision cannot be said to have clearly affirmed the existence of such access in Bulgarian law. 238. The Court further notes that the Government have not produced any court decisions showing that persons under partial guardianship have been able to apply of their own motion to a court to have the measure lifted; however, they have shown that at least one application for restoration of legal capacity has been successfully brought by the guardian of a fully incapacitated person (see paragraph 52 above). 239. The Court thus considers it established that the applicant was unable to apply for restoration of his legal capacity other than through his guardian or one of the persons listed in Article 277 of the CCP. 240. The Court would also emphasise that, as far as access to court is concerned, domestic law makes no distinction between those who are entirely deprived of legal capacity and those who, like the applicant, are only partially incapacitated. Moreover, domestic legislation does not provide for any possibility of automatic periodic review of whether the grounds for placing a person under guardianship remain valid. Lastly, in the applicant’s case the measure in question was not limited in time. 241. Admittedly, the right of access to the courts is not absolute and requires by its very nature that the State should enjoy a certain margin of appreciation in regulating the sphere under examination (see Ashingdane, cited above, § 57). In addition, the Court acknowledges that restrictions on a person’s procedural rights, even where the person has been only partially deprived of legal capacity, may be justified for the person’s own protection, the protection of the interests of others and the proper administration of justice. However, the importance of exercising these rights will vary according to the purpose of the action which the person concerned intends to bring before the courts. In particular, the right to ask a court to review a declaration of incapacity is one of the most important rights for the person concerned since such a procedure, once initiated, will be decisive for the exercise of all the rights and freedoms affected by the declaration of incapacity, not least in relation to any restrictions that may be placed on the person’s liberty (see also Shtukaturov, cited above, § 71). The Court therefore considers that this right is one of the fundamental procedural rights for the protection of those who have been partially deprived of legal capacity. It follows that such persons should in principle enjoy direct access to the courts in this sphere. 242. However, the State remains free to determine the procedure by which such direct access is to be realised. At the same time, the Court considers that it would not be incompatible with Article 6 for national legislation to provide for certain restrictions on access to court in this sphere, with the sole aim of ensuring that the courts are not overburdened with excessive and manifestly ill-founded applications. Nevertheless, it seems clear that this problem may be solved by other, less restrictive means than automatic denial of direct access, for example by limiting the frequency with which applications may be made or introducing a system for prior examination of their admissibility on the basis of the file. 243. The Court further observes that eighteen of the twenty national legal systems studied in this context provide for direct access to the courts for any partially incapacitated persons wishing to have their status reviewed. In seventeen States such access is open even to those declared fully incapable (see paragraphs 88-90 above). This indicates that there is now a trend at European level towards granting legally incapacitated persons direct access to the courts to seek restoration of their capacity. 244. The Court is also obliged to note the growing importance which international instruments for the protection of people with mental disorders are now attaching to granting them as much legal autonomy as possible. It refers in this connection to the United Nations Convention of 13 December 2006 on the Rights of Persons with Disabilities and to Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults, which recommend that adequate procedural safeguards be put in place to protect legally incapacitated persons to the greatest extent possible, to ensure periodic reviews of their status and to make appropriate remedies available (see paragraphs 72-73 above). 245. In the light of the foregoing, in particular the trends emerging in national legislation and the relevant international instruments, the Court considers that Article 6 § 1 of the Convention must be interpreted as guaranteeing in principle that anyone who has been declared partially incapable, as is the applicant’s case, has direct access to a court to seek restoration of his or her legal capacity. 246. In the instant case the Court has observed that direct access of this kind is not guaranteed with a sufficient degree of certainty by the relevant Bulgarian legislation. That finding is sufficient for it to conclude that there has been a violation of Article 6 § 1 of the Convention in respect of the applicant. 247. The above conclusion dispenses the Court from examining whether the indirect legal remedies referred to by the Government provided the applicant with sufficient guarantees that his case would be brought before a court. 248. The Court therefore dismisses the Government’s objection of failure to exhaust domestic remedies (see paragraph 223 above) and concludes that there has been a violation of Article 6 § 1 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13 249. The applicant alleged that the restrictive guardianship regime, including his placement in the Pastra social care home and the physical living conditions there, had amounted to unjustified interference with his right to respect for his private life and home. He submitted that Bulgarian law had not afforded him a sufficient and accessible remedy in that respect. He relied on Article 8 of the Convention taken alone and in conjunction with Article 13. Article 8 provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 250. The applicant maintained in particular that the guardianship regime had not been geared to his individual case but had entailed restrictions automatically imposed on anyone who had been declared incapable by a judge. He added that the fact of having to live in the Pastra social care home had effectively barred him from taking part in community life and from developing relations with persons of his choosing. The authorities had not attempted to find alternative therapeutic solutions in the community or to take measures that were less restrictive of his personal liberty, with the result that he had developed “institutionalisation syndrome”, that is, the loss of social skills and individual personality traits. 251. The Government contested those allegations. 252. Having regard to its conclusions under Articles 3, 5, 6 and 13 of the Convention, the Court considers that no separate issue arises under Article 8 of the Convention taken alone and/or in conjunction with Article 13. It is therefore unnecessary to examine this complaint. VII. ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention 253. The relevant parts of Article 46 of the Convention read as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 254. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Menteş and Others v. Turkey (Article 50), 24 July 1998, § 24, Reports 1998-IV; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I). The Court further notes that it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention (see Scozzari and Giunta, cited above; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV). 255. However, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, 17 September 2009). 256. In the instant case the Court considers that it is necessary, in view of its finding of a violation of Article 5, to indicate individual measures for the execution of this judgment. It observes that it has found a violation of that Article on account of the failure to comply with the requirement that any deprivation of liberty must be “in accordance with a procedure prescribed by law” and the lack of justification for the applicant’s deprivation of liberty under sub-paragraph (e) or any of the other sub-paragraphs of Article 5 § 1. It has also noted deficiencies in the assessment of the presence and persistence of any disorders warranting placement in a social care home (see paragraphs 148-60 above). 257. The Court considers that in order to redress the effects of the breach of the applicant’s rights, the authorities should ascertain whether he wishes to remain in the home in question. Nothing in this judgment should be seen as an obstacle to his continued placement in the Pastra social care home or any other home for people with mental disorders if it is established that he consents to the placement. However, should the applicant object to such placement, the authorities should re-examine his situation without delay in the light of the findings of this judgment. 258. The Court notes that it has also found a violation of Article 6 § 1 on account of the lack of direct access to a court for a person who has been partially deprived of legal capacity with a view to seeking its restoration (see paragraphs 233-48 above). Having regard to that finding, the Court recommends that the respondent State envisage the necessary general measures to ensure the effective possibility of such access. B. Article 41 of the Convention 259. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Damage 260. The applicant did not submit any claims in respect of pecuniary damage but sought 64,000 euros (EUR) for non-pecuniary damage. 261. He asserted in particular that he had endured poor living conditions in the social care home and claimed a sum of EUR 14,000 on that account. In respect of his placement in the Pastra social care home, he stated that he had experienced feelings of anxiety, distress and frustration ever since that measure had begun to be implemented in December 2002. His enforced placement in the home had also had a significant impact on his life as he had been removed from his social environment and subjected to a very restrictive regime, making it harder for him to reintegrate into the community. He submitted that although there was no comparable case-law concerning unlawful detention in a social care home for people with mental disorders, regard should be had to the just satisfaction awarded by the Court in cases involving unlawful detention in psychiatric institutions. He referred, for example, to the judgments in Gajcsi v. Hungary (no. 34503/03, §§ 28-30, 3 October 2006) and Kayadjieva v. Bulgaria (no. 56272/00, § 57, 28 September 2006), while noting that he had been deprived of his liberty for a considerably longer period than the applicants in the above-mentioned cases. He submitted that a sum of EUR 30,000 would constitute an equitable award on that account. Lastly, he added that his lack of access to the courts to seek a review of his legal status had restricted the exercise of a number of freedoms in the sphere of his private life, causing additional non-pecuniary damage, for which an award of EUR 20,000 could provide redress. 262. The Government submitted that the applicant’s claims were excessive and unfounded. They argued that if the Court were to make any award in respect of non-pecuniary damage, it should not exceed the amounts awarded in judgments against Bulgaria concerning compulsory psychiatric admission. The Government referred to the judgments in Kayadjieva (cited above, § 57), Varbanov (cited above, § 67), and Kepenerov v. Bulgaria (no. 39269/98, § 42, 31 July 2003). 263. The Court observes that it has found violations of several provisions of the Convention in the present case, namely Articles 3, 5 (§§ 1, 4 and 5), 6 and 13. It considers that the applicant must have endured suffering as a result of his placement in the home, which began in December 2002 and is still ongoing, his inability to secure a judicial review of that measure and his lack of access to a court to apply for release from partial guardianship. This suffering undoubtedly aroused in him a feeling of helplessness and anxiety. The Court further considers that the applicant sustained non-pecuniary damage on account of the degrading living conditions he had to endure for more than seven years. 264. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court considers that the applicant should be awarded an aggregate sum of EUR 15,000 in respect of non-pecuniary damage. 2. Costs and expenses 265. The applicant did not submit any claims in respect of costs and expenses. 3. Default interest 266. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Grand Chamber held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention, in that the applicant had been denied access to a court to seek restoration of his legal capacity. While the right of access to the courts was not absolute and restrictions on a person’s procedural rights could be justified, even where the person had been only partially deprived of legal capacity, the right to ask a court to review a declaration of incapacity was one of the most important rights for the person concerned. It followed that such persons should in principle enjoy direct access to the courts in this sphere. In addition, the Grand Chamber observed that there was now a trend at European level towards granting legally incapacitated persons direct access to the courts to seek restoration of their capacity. International instruments for the protection of people with mental disorders were likewise attaching growing importance to granting them as much legal autonomy as possible6. Article 6 § 1 of the Convention should be interpreted as guaranteeing in principle that anyone who had been declared partially incapable, as was the applicant’s case, had direct access to a court to seek restoration of his or her legal capacity. Direct access of that kind was not guaranteed with a sufficient degree of certainty by the relevant Bulgarian legislation. |
Subsets and Splits